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Gass-H T) 1 74 
Book L112 



4GTH Congress, ) HOUSE OF REPRESENTATIVES, i Ex. Doo. 

2d Session. j , \ No. 46. 



U,£, tl*^^ •*#-<* ^-o 



II 

REPORT 



OF THE 



PUBLIC LANDS COMMISSION 



CREATED BY 



THE ACT OF MARCH 3, 1879 ; 



DELATING TO 



PUBLIC LANDS IN THE WESTERN PORTION OF THE UNITED STATES 
AND TO THE OPERATION OF EXISTING LAND LAWS. 




WASHINGTON: 

GOVERNMENT PRINTING OFFICE, 

1880. 



MESSAGE 

FROM THE 

PRESIDENT OF THE UNITED STATES, 



TRANSMITTING 



The report of the Public Land Commission under the act approved March 

3, 1879. 



February 25, 1880. — Ordered to be printed. 



To the Senate and Rouse of Representatives- : 

. I have the honor to transmit herewith a preliminary report and a draft 
)f a bill submitted by the Public Land Commission authorized by the 
act of Congress approved March 3, 1879. 

The subject of the report and of the bill accompanying it is of such 
importance that I respectfully commend it to the prompt and earnest 
consideration of Congress. 

E. B. HAYES. 

Executive Mansion, February 25, 1880. 



Department of the Interior, 

Washington, February 24, 1880. 
Sir : I have the honor to transmit herewith for submission to Congress 
the preliminary report of the Public Land Commission, appointed the 1st 
July last under the sundry civil appropriation act of 3d March last (20 
Stat., 391), with the accompanying documents. 
Very respectfully, 

C. SCHURZ, 

Secretary. 
The President. 



m*~. 



PRELIMINARY REPORT 



OF THE 



PUBLIC LAND COMMISSION 



TO THE 



SENATE AND HOUSE OF REPRESENTATIVES. 



To the Senate and Souse of Representatives of the United States : 

The act of March 3, 1879, making appropriation for the sundry civil 
expenses of the government for the fiscal year ending June 30,1880, 
contains the following clauses : 

For the expense of a commission on the codification of existing laws relating to the 
survey and disposition of the public domain, and for other purposes, twenty thousand 
dollars : 

Provided, That the commission shall consist of the Commissioner of the General Land 
Office, the Director of the Geological Survey, and three civilians, to be appointed by the 
President, who shall receive a per diem compensation of ten dollars for each day while 
actually engaged, and their traveling expenses; and neither the Commissioner of the Gen- 
eral Land Office nor the Director of the Geological Survey shall receive other compen- 
sation for their services upon said commission than their salaries respectively, except 
their traveling expenses while engaged on said duties ; and it shall be the duty of 
this commission to report to Congress within one year from the time of its organiza- 
tion : first, a codification of the present laws relating to the survey and disposition of 
the public domain ; second, a system and standard of classification of public lands, as 
arable, irrigable, timber, pasturage, SAvamp, coal, mineral lands, and such other classes 
as may be deemed proper, having dae regard to humidity of climate, supply of water 
for irrigation, and other physical characteristics ; third, a system of land-parceling 
surveys adapted to the economic uses of the several classes of lands; and, fourth, such 
recommendations as they may deem wise in relation to the best methods of disposing 
of the public lands of the western portion of the United States to actual settlers. 

In conformity with the foregoing clauses # commission was appointed, 
consisting, besides the ex officio members named in the act, of Mr. Thomas 
Donaldson, of Philadelphia, Pa., Mr. A. T. Britton, of Washington, and 
Mr. John W. Powell, of Illinois. It was duly organized at Washing- 
ton on July 8, 1879, and it now has the honor to submit a preliminary 
report. 

In laying out its work a careful consideration of the above provisions 
of law led to a subdivision of the work into two principal parts. First, 
a codification of the present laws relating to the survey and disposition 
of the public domain ; second, investigation looking to recommenda- 
tions of new legislation. 



VI PUBLIC LANDS. 

I.— Codification. 

From the context of this act of Congress doubt has existed whether 
the term " codification n was intended to be used in the strict sense, and 
to require the draughting in one system of the whole law expressed in 
general principles deduced from the pre-existing statutes and from the 
adjudications of courts and the executive departments; or whether it 
was intended to have presented in an orderly arrangement a consolida- 
tion of the existing statute law, with references to decisions explaining 
and expounding the same. In either sense, however, very extended 
professional labor will be required to fairly perform this part of the duty 
of the commission. The assistance furnished by title 32 of the Revised 
Statutes of the United States is limited, because the compilers were in 
terms restricted to statutes " general and permanent in their nature," 
while the duty of this commission was extended to all " existing laws 
relating to the survey and disposition of the public domain.' 7 

The original plan for disposing of the public lands was submitted to the 
House of Representatives by Alexander Hamilton, Secretary of the 
Treasury, on the 20th of July, 1790. Its general features have been 
preserved with singular absence of radical changes. While, however, it 
blocked out very precisely the line of general and permanent legislation 
to be enacted, it expressly provided " for accommodating to circumstances 
which cannot beforehand be accurately appreciated and for varying the 
course of proceeding as experience shall suggest to be proper.' 7 In the 
succeeding ninety years Congress has acted upon this elastic rule by 
supplementing the permanent system with innumerable statutes, local 
in their application and temporary in their intended term. A public 
land system has resulted which, while resting primarily upou laws u gen- 
eral and permanent in their nature," is permeated with a series of laws 
local and temporary in their application. And while such local and 
temporary laws may have been limited in their past or may be re- 
stricted in their future operation, yet rights have accrued under them 
and extended over the entire public domain. The various grauts of 
lands to States for purposes of education or of internal improvement 
are apt illustrations of this class of statutes; and it may well be ques- 
tioned whether the titles of our citizens derived in late years from the 
United States do not rest as largely upon the local and temporary, as 
upon the general and permanent legislation. The jurisdiction of this 
commission was extended to all these laws so as to exhibit the whole 
system under which public lands are segregated and disposed of. In 
the performance of that duty the commission has found it necessary to 
collate all the laws enacted upon this subject by Congress (aggregating 
about 3,500), and by elimination of obsolete and repealed matter to 
reduce the same to existing legislation. It has also been necessary to 
digest the land decisions of all the Federal courts ; of the supreme 
courts of the several States, and of the Interior Department. Very con- 
siderable progress has been made in both branches of this work and the 
results will be presented to Congress hereafter in the form of a final re- 
port. With the code will be an introduction reviewing the history of 
the origin, organization, and progress of the land system. In this work 
also considerable progress has been made. 

II. — New and amendatory legislation. 

In order to gain a more thorough knowledge of the subjects upon 



PUBLIC LANDS. VII 

which the commission was required to deliberate 5 to ascertain the 
practical workings of existing laws and their adaptation to the settle- 
ment of the public domain ; and also to learn the views entertained rel- 
ative thereto by the people of the West, the commission believed it 
necessary to visit that part of the country before formulating any rec- 
ommendations. Accordingly, on the 18th of August, 1879, the commis 
sion met at Denver, Colo., and during the remainder of that month and 
until December 1st visited consecutively, either as a body or in detach- 
ments, all of the States and Territories west of Kansas and Nebraska- 
except Washington Territory. In order to acquire a much wider range 
and fuller expression of opinion than would be possible by personal in- 
terviews, the commission distributed, through the kind assistance of 
governors, Congressional delegations, and United States land officers, 
a printed list of interrogatories, to which numerous answers were re- 
ceived. The commission has been fortunate in securing the earnest 
attention of the most intelligent people of the West both in official and in 
unofficial positions, and have succeeded in eliciting expressions of opin- 
ion from those whose long experience and thorough practical knowledge 
of the working of our present land system gave to their advice a special 
value. It is felt to be a cause of peculiar gratification that the testi- 
mony herewith laid before your honorable body contains so much that 
is both learned and practical. The commission is indebted to the several 
Congressional delegations of the Western States and Territories, con- 
taining public lands, for intelligent aid rendered by distributing the 
beforementioned circular letter of inquiry among representative con- 
stituents. AVe also deem it just and proper to add that valuable 
assistance was rendered us by the Hon. George L. Converse, chairman 
of the House Committee on Public Lands, who at his own expense ac- 
companied the commission to the field and performed more than his 
share of labor in order to qualify himselt to act intelligently upon any 
report from this commission which might be referred to his committee. 

In carrying out its prescribed duties certain considerations seemed to 
the commission to be entitled to a controlling weight in guiding and 
determining its recommendations as to new legislation. 

1. In the first place the existing land system has been tried for many 
years, and on the whole is believed by everybody to be sound in prin- 
ciple and based upon a wise and beneficent policy. It is believed to 
have accomplished, thus far, the objects for which it was devised in a 
manner which may not have been perfect but which has been reasonably 
satisfactory. Whatever faults it may now have were felt to be those 
arising rather from changes in the subject-matter with which the 
existing land laws have to deal, and not inherent defects of the 
land system. Created for the disposal of the lands in the original 
Northwest Territory it might need some readjustment of parts when 
extended over the widely different region of our subsequent acquisi- 
tions of territory. But whatever might be the changes rendered 
necessary by this shifting of their field of operation, it was felt that 
they could not be of such a radical character as to call for extended 
and sweeping changes, either in the aims and policy of those laws 
or in the general plan of the machinery by which they are admin- 
istered. Hence, it seemed to your commissioners that their proper 
line of inquiry was to ascertain in what particulars the land laws re- 
quired to be changed in readapting them to the arid regions of the West, 
while preserving as perfectly as possible the original spirit and intent 



VIII PUBLIC LANDS. 

with which they were applied to the more favored regions of the Missis- 
sippi Basin. 

2. Another controling consideration was that the policy of the gov- 
ernment in respect to its public lands has beeu to devote them to settle- 
ment by industrious citizens. It is true that at au early period in the 
operation of the public-land system the sale of land had been looked 
upon as a source of revenue ; but this policy long ago gave place to one 
which regarded the public lands as a field in which the great and rich 
harvest to be reaped consisted of thousands and perhaps millions of 
good citizens, instead of a few dollars arising from the net proceeds 
of sales at trivial prices. Hence the policy of the government has 
of late years been to encourage settlement by fixing a nominal price 
only upon its lands, but laying the greatest stress upon those conditions 
which are designed to secure bona fide occupation and utilization by 
actual settlers. It was a conviction of the wisdom of this policy which 
led Congress to enact the homestead law, and that action has been 
abundantly justified by experience. 

3. A third material consideration is the policy limiting the amount of 
land which one person can acquire directly from the government. There 
is a deeply seated conviction in the minds of a majority of the people of 
this country that any system which tends towards or even permits the 
aggregation of very large tracts of valuable land into the ownership of 
a single person is not only unrepublican, but is essentially unjust. In 
no respect is the principle of " the greatest good* to the greatest num- 
ber" more dependent upon wise legislation than in its application to the 
distribution of land. These convictions have led to the engrafting upon 
the several acts for pre-emption, homestead, timber culture, and other 
forms by which public land is acquired, of limitations of the quantity 
attainable directly by one person to au unit of area, wdiich in the theory 
of the law is sufficient, and no more than sufficient, to secure to the set- 
tler a reasonable and moderate support suitable to a citizen in average 
circumstances. 

The foregoing considerations being, as it were, cardinal points of pub- 
lic policy towards the land system, it remained for the commission to 
inquire how far and how well the legislative provisions and executive 
machinery established for these purposes attain the objects for which 
they were devised. Here your commissioners are of the opinion that 
the laws and machinery of their execution have not been constructed 
in all respects so as to secure the objects which they contemplated. 
The main objects have indeed been generally reached, though not with- 
out occasional failures. It may remembered, however, that a portion 
of these laws, and especially those which were enacted for the settle- 
ment of the western part of the United States, are in a large degree 
recent, and are to a considerable extent experimental in their nature, 
and if they do not secure in the fullest measure their objects, they at 
least furnish suggestions as to the means by which their defects may be 
remedied. 

Up to June 30, 1879, the quantity of public land surveyed was 
734,591,036 acres, leaviugyet to be surveyed, excluding Alaska, 1,080,- 
197,686 acres. The disposition of the public domain has generally been 
in accorance with the fundamental principles of our land policy, and 
this disposition has been general satisfactory. Had it been otherwise, 
it would have been made known promptly to Congress through loud 
and general complaints of the people. Moreover, the ease and rapidity 
with which any qualified person can make entry of such public land as 



PUBLIC LANDS. IX 

yet remains is apparent to all. The system is a catholic one, and as free 
to the foreigner as to the citizen. 

But, on the other hand, instances may be noted where the laws fail to 
attain the very results which they were ordained to accomplish. As an 
illustration, the theory of the settlement laws is that an unit of 160 
acres of land is sufficient for a person ; yet under the various settle- 
ment laws now in existence it is possible tor a person to acquire 1,120 
acres of the public domain. There can be no doubt that much laud 
has passed from the government into the hands of individuals in a 
manner and under conditions which were not contemplated when the 
laws were made ; that the conditions required by law have been im- 
perfectly fulfilled by settlers and claimants; that compliance with 
such requirements has ofteu been perfunctory and nominal, or even 
evaded altogether. It also appears that lauds which should be opened 
to occupation and settlement are practically barred therefrom by the 
effect of restrictions which render their acquisition extremely burden- 
some and difficult, or qualify the titles by means of reservations which 
render them undesirable and lead the best class of settlers to avoid 
them. In the case of timber lands, the position of the settler with re- 
spect to the laws is practically anomalous. The laws relating to min- 
eral lands are such as are calculated to. foment litigation and contest 
rather than to secure just ownership aud quiet title. A very great 
proportion of the lands of the west cannot become settled and pass 
into private ownership, because under the terms of existing laws it is 
not desirable to the settler to acquire them. 

These difficulties have in the mam grown out of the waut of adapta 
tiou to the present public domain of the laws which were originally framed 
for the northwest Territory. In the latter region nearly all the laud 
had a value fully equal to the price which the government put upon it at 
the time it was first wanted for settlement, and so far as natural advant- 
ages aud the value arising from natural causes, as distinct from artificial, 
are concerned, oue acre of that region was about as valuable as another. 
There was a kind of homogeneity in the quality and value of that region. 
It was all valuable for agriculture and habitation. But in the western 
portion of our country it is otherwise. Its most conspicuous charac- 
teristic from an economic point of view is its heterogeneity. Oue region 
is valuable exclusively for mining, another solely for timber, a third for 
nothing but pasturage, aud a fourth serves no useful purpose whatever. 
The very small proportion which is capable of agriculture must, iu the 
greater part of the West, be irrigated in order to yield a crop. Hence 
it has come to pass that the homestead and pre-emption laws are not 
suited under the old conditions attached to them for securing the settle- 
ment of. more than an insignificant portion of the country. Hence, 
too, it has arisen that the waut for lands which could not be advanta- 
geously acquired under those laws has led to practices not contem- 
plated iu tue statutes for the purpose of acquiring them in quantities 
and at prices more acceptable to occupants, or has even led to their 
occupation by possessory titles or rights, which amount to practically un- 
limited seizure without record or notice (except to trespassers) and with- 
out tender of payment. It may be said that the people of these regions 
liave to a certain extent framed customs which take the place of laws. In 
other words they are a law unto themselves. 

From time to time laws have been passed which were designed to 
meet these difficulties; not a systematic revision of the land laws, but 
attacks upon evils in detail. Each law was designed to meet some 
special and limited class of cases. Thus the timber-culture act was in- 



X PUBLIC LANDS, 

tended to utilize lands in regions devoid of timber by offering a bonus 
upon its propagation. The desert-land act was intended to promote the 
reclamation of lands by irrigation which would otherwise be sterile. 
Laws were passed to prohibit and prevent depredations upon timber; 
others to make more stringent and exacting the forms of notice pre- 
liminary to the perfecting of titles, in order to prevent the fraudulent 
acquisition of lands. These various and numerous enactmeuts were in 
most cases beneficial and even indispensable. They were natural efforts 
to meet special wants and necessities, or to counteract special abuses. 
But through them all there runs a common defect. They were not co- 
ordinated to the general system. They were seldom fitted and keyed 
into the fabric of the land-laws in such a manner as to form a perfectly 
haimonious and congruous part of a symmetrical whole. While curing 
some defects they gave rise to others. Many of them did not look be- 
yond the attainment of a narrow and specific object to the relations 
which it must necessarily bear to a comprehensive and intimately 
related code. It is true that codes relating to important branches of 
administration and jurisprudence do frequently grow into stable form 
and definite shape by this kind of accretion, but it is usually accompa- 
nied by the protracted process of hammering and beating into shape by 
many blows of judicial decisions and by the addition of volumes of court- 
made law to fill wide gaps in the statutes. During such a process ex- 
perience has shown that much hardship has been entailed, many bitter 
and expensive contests have been provoked and both law and indi- 
viduals have been trampled upon in the conflicts. In this connection 
the want of adaptation of the parts to the system will be illustrated 
when the subject ot the mining law is. discussed, and also by the opera- 
tion of existing laws relating to timber and to agriculture by irrigation. 
It may be proper to mention here the growth of one very serious evil 
arising from this piece-meal legislation, which is the necessity it produces 
of qualifying and encumbering the titles which the government issues 
with various forms of stipulations, reservations and provisos. Complaint 
has been made that in some portions of the West unusual difficulty and 
expense is rendered necessary in order to fulfil the requirements of two 
or more incongruous series of laws for procuring title, and that the title 
thus obtained is of uncertain value and validity. 

It has been the aim of the commission, so far as practicable, to read- 
just these incongruities without introducing any unnecessary change in 
the substance or essence of any of these statutes, and to harmonize the 
whole in consonance with the cardinal principles of the public-land 
laws which have already been specified. Much difficulty, however, has 
been experienced because the various laws have already taken root, rights 
have vested under them, lines of judicial decision have taken direction, 
and a definite method of administration and construction has grown up. 
Hence the question has often presented itself whether it is wiser to ac- 
knowledge and perpetuate existing evils which are known, or to intro- 
duce fresh ones of unknown extent. In general, the commission has 
chosen the conservative view. Instances, however, have arisen whereit 
seemed that the wisdom and even necessity of introducing both new legis- 
lation and important modifications in the old were unmistakable. The 
commission will therefore recommend some new laws which will chiefly 
relate to classes of land peculiar to the western region and not hereto- 
fore specially recognized by statute, and they will also offer amend- 
ments looking to the perfection of existing legislation as to the other 
classes. Inasmuch as this will necessarily cover the entire public-land 
system, and as our recommendations for both new aud corrective le; '.s 



Public lands. xi 

lation will, if adopted by Congress, be substituted for some chapters of 
title 32 of the Revised Statutes, and will permeate sections and parts of 
sections of other chapters of the same title, we have put our recom- 
mendations in the form of a land-bill which covers the entire public- 
land system in its general and permanent features. If enacted by Con- 
gress it will take the place of all of Title 32 of the Revised Statutes 
and of so much of Title 11 as relates to the General Land Office. We 
recommend the enactment of the bill herewith submitted as the basis 
of our report, and will now proceed to discuss briefly the subordinate 
features, and state the reasons which have induced their adoption by 
the commission. 

ORGANIZATION. 

The machinery of the land system lies at the threshold of the success- 
ful administration of the law. If defective and incomplete in its organ- 
ization, it will not be operative from inherent weakness, and the law 
will, in the ratio of such weakness, remain a dead letter upon the statute 
book. If cumbersome and complicated it will, by cumulative delays 
and excessive cost, impair and retard the operation of the law it was 
intended to execute. The commission has sought to put the officers of 
the land system on such footing in poiut of numbers and powers as 
would, at a minimum expenditure, secure a maximum efficiency. The 
present organization was adopted many years since, and it has not been 
perfected to keep even step with the administrative growth of the 
system. In the last twenty years the surveying districts have in- 
creased from 10 to 16 ; the district land-offices from 53 to 94 ; the acres 
annually surveyed from four millions to more than double that quantity ; 
and the acres annually disposed of from three millions to over nine mill- 
ions. During nearly the same period the system of land grants to aid 
the construction of railroads and wagon roads has been matured ; the 
swamp-land, agricultural college, and other grants to States have been 
made ; the homestead laws and the timber-culture laws have been en- 
acted ; the practice of selling the fee to the mineral lands has been en- 
grafted upon our legislation ; and by Indian treaties and the acquisition 
of Mexican lands the area of our public domain has been enlarged. 
The adjustment of each of these involves the settlement of difficult 
questions of the most important character both to the settler and to the 
government. The business imposed upon the land organization has 
been thereby largely augmented, and the executive labor arising there- 
from has been proportionately increased. But Congress has heretofore 
met their increased demands only with temporary expedients, and the 
permanent organization of the General Land Office is even smaller to-day, 
when the population of the country has swollen to 48,000,000, than it 
was when only 27,000,000 acknowledged one national authority. The 
prosperity of a nation is interwoven with the security of its land titles ; 
and the titles to our public domain depend largely for their security 
upon the accuracy and promptness of the operations of the Land Bureau 
and its subordinate agencies. It is important that the officers of that 
organization should be of sufficient integrity and trained capacity to 
qualify them for the lawful adjustment of the intricate and delicate 
questions of fact and of law constantly arising in the administra- 
tive construction of the various statutes which constitute our land sys- 
tem. Duties of such responsibility require men of experience and 
ability, and for their employment and their retention an adequate 
compensation should be provided. The temporary expedients here- 



XII PUBLIC LANDS. 

tofore resorted to in Congressional enactments have been uniformly 
an increase of low-grade officers with small compensation. But 
brains command a market price as well as merchandise and while 
the increase of small salaries has augmented the hands and feet 
of the organization, it has not materially enlarged the volume of intel- 
lectual power to direct their movement. The organization has had an 
excess of physical force and a deficiency of brain force. The commis- 
sion has sought to increase the latter and to diminish the former. 
Taking the entire land organization, the commission has increased the 
compensation and the number of the higher grade officeis, and has 
thus augmented the expenses by about $50,000 ; but it has also abol- 
ished useless officers, and reduced the number of low-grade employes 
so as to diminish in that direction the expenses about $90,000. An 
aggregate saving of about $40,000 would result to the annual appro- 
priations for the land service if the whole of our recommendations 
should be adopted, which we do earnestly recommend in the interest of 
a wise and sound economy. 

GENERAL LAND OFFICE. 

The commission respectfully ask a careful consideration by Congress 
of its statement regarding the officers and clerical force of the Geueral 
Land Office, their salaries, and the duties they perform, and the recom- 
mendations for securing greater efficiency in that office. 

The General Land Office was organized as a separate bureau in the 
Treasury Department by an act of Cougress, approved April 25, 1812. 
The duties, though important, were simple and without many complica- 
tions at that time. The public lands were disposed of only by sales for 
cash. No grant of any kind had then been made ; no mining laws were in 
existence; the population of the country was comparatively small, and 
settlement upon the public lands proportionately slow. The thirteen 
original States were sparsely populated and immigrants and native-born 
citizens found homes mostly within their limits, while settlements were 
founded but slowly in the Northwest territory. The Commissioner of 
the General Land Office, for the comparatively unimportant duties then 
to be performed, was allowed the same salary as was allowed "the 
Auditor " of the Treasury ; and it remained the same until the year 1836, 
when the office was reorganized, and the salary of the Commissioner 
was fixed at $3,000 per year, and has since been raised to $4,000, which 
amount is not adequate to the duties and responsibilities of the office. 
The salary should be equal to that of any other bureau officer of the gov- 
ernment. 

At the date of the reorganization in 183G, there was still compara- 
tively little to do in the General Land Office; the method of disposal of 
the public lands was the same as in 1812, the amount disposed of being 
greater. The territory acquired by the treaty of Guadalupe Hidalgo and 
by the Gadsden purchases was very great in extent, and consisted largely 
of grants and private holdings which were not segregated from the 
mass of public domain acquired by said treaties. The work of ascertain- 
ing the nature, extent, and boundaries of the grants and private hold- 
ings, and segregating and patenting the same which was devolved upon 
the General Land Office by laws made in pursuance of those treaties 
has been for many years more difficult, requiring a higher order of ability 
than all the work of the office prior to the date of the treaties named. 
In addition to the private land claims, and since the date at which 
their settlement became a duty of the office, all, or nearly all, land grants 



PUBLIC LANDS XIII 

I>y the government, such as grants to aid in the construction of rail- 
roads and telegraph lines, the grants of swamp and overflowed lands 
to the States, the grants for wagon roads, agricultural colleges, internal 
improvements, university grants, common-school grants, and grants for 
slack water navigation have been made, aud the ir adjustment added to 
the other duties of the laud office. The homestead, timber-culture, 
mineral, and bounty land acts have also to be added to the great 
volume of work that has in the last quarter of a century been laid 
upon the General Land Office under the various acts of Congress. 
The work of selling lands for cash and the adjustment of Virginia mili- 
tary scrip, which comprised nearly the whole duty of the office until 
about the .year 1850, would not make any perceptible difference in the 
work of the office today if it were entirely withdrawn or added to it; 
and yet, strange to say, the clerical force of the office was greater during 
gome part of that time than it was in the years 1877 aud 1878, and 
nearly equal to what it is in the year 1880. 

The conflicts arising between the government and grantees and be- 
tween settlers and grantees require the best ability for their adjust- 
ments. Questions which thus arise are at all times pending before the 
office. Cases involving greater amounts come before the General Land 
Office than before any other branch of the executive department of the 
government. The difference between what the beneficiaries of a land 
grant may claim and what may be awarded often amounts to millions 
of dollars in value. The adjudication of many cases involving millions 
of dollars worth of property is not infrequent. Prior to the acquisition 
of the territory in which private land claims are situated, and the en- 
actment of laws granting lauds equal to the area of one and a half 
States the size of Pennsylvania, to a single corporation, and the enact- 
ment of laws for the sale of mineral lands, cases involving more than a 
few hundred dollars could not often arise. 

Notwithstanding the great increase of labor in this office, and the 
change in the character of the work, requiring higher and better quali- 
fications, the law officer of the bureau aud its principal clerks are paid 
only the salaries fixed by law forty-four years ago, when the salaries of 
members of Congress were fixed at eight dollars per day for the time 
employed. Since then all grades of salaries, save those of low-grade 
officers who toil throughout the year without vacation, have been greatly 
increased. Increase of numbers of clerks at low salaries has from most 
urgent necessity been allowed by law. 

The commission, with a view to bettering the service, would respect- 
fully recommend the reorganization of the General Land Office shown 
in the following tables, which show the difference between the present 
and the proposed organization : 

PRESENT ORGANIZATION. 

1 Commissioner, at $4,000 $4,000 00 

1 chief clerk, at $2,000 „ 2,000 00 

1 recorder, at $2,000 2,000 00 

1 law clerk, at $2,000 2,000 00 

1 principal clerk public lands, at $1,800 1,800 00 

1 principal cierk private laud claims, at $1,800 1, 800 00 

1 principal clerk surveys, at $1,800 1,800 00 

6 clerks class four, at $1,800 eacb 10,800 00 

1 draughtsman, at $1,600 1,600 00 

22 clerks class three, at $1,600 each 35,200 00 

1 assistant draughtsman, at $1,400 1,400 00 

40 clerks class two, $1,400 each 56,000 00 

80 clerks class one, at $1,200 each 9o, 000 00 



XiV PUBLIC LANDS. j 

30 clerks class one, $1,000 each $30,000 op 

9 copyists, at $900 each 8, 100 00 

9 assistant messengers, at $720 each 6, 480 00 

6 packers, at $720 each 4, 320 00 

12 laborers, at $660 each 7,920 00 

223 273,220 00 

PllOPOSED ORGANIZATION. 

1 Commissioner, at $6,000 $6, 000 00 

1 Assistant Commissioner, at $3,000 3. 000 00 

1 chief clerk, at $2,500 2,500 00 

1 solicitor, at $2,700 2,700 00 

1 recorder, at $2,400 2, 400 00 

1 clerk in charge of surveys -. 3,000 00 

9 chiefs of divisions, at $2,400 each 21,600 00 

1 chief draughtsman, at $2,200 2,200 00 

10 assistant chiefs of divison, $2,000 each 20, 000 00 

15 clerks class four, at $1,800 each 27,000 00 

35 clerks class three, at $1,600 each 56, 000 00 

40 clerks class two, at $1,400 each 56, 000 00 

50 clerks class one, at $1,200 each 60,000 00 

10 draughtsmen, $1,200 each 12,000 00 

20 clerks, at $1,000 each 20,000 00 

10 copyists, at $900 each 9,000 00 

2 packers, at $840 each 1,680 00 

1 chief messenger, at $840 840 00 

9 assistant messengers, at $720 each 6, 480 00 

12 laborers, at $720 each 8,640 00 

229 321,040 00 

The commission would recommend a much larger force for one or two 
years, if there were room in which to advantageously place it. The room 
allotted to the Generel Land Office is not quite the worst that it could 
be, nor is it wholly inadequate, but it approximates both. The immense 
bulk of valuable records of the office is stored in cheap wooden cases in 
dark rooms and darker halls, to which clerks must constantly go for 
examination of files of papers and volumes of records, which, when 
found, cannot in dark or cloudy weather, be read without carrying them 
to a window, which may be a hundred feet away. 

It may be safely estimated that the want of more convenient and suit- 
able room costs the government the one fourth part annually of all 
money appropriated for clerica force in the G-eneral Land Office. 

If there were sufficient and suitable room for the purpose, it would be 
both wisdom and economy to add as largely to the clerical force as 
might be necessary to enable the Commissioner to thoroughly inspect 
the records of the office, and ascertain errors, reproduce all mutilated 
and worn-out records while it may be done, but the room is not suffi- 
cient ; and the best thing that can be doue, until room is provide '., is to 
give the maximum force that can be employed and pay salaries high 
enough to get good, if not the best, talent. 

APPEALS. 

Public-land controversies iuvolve large values. Their solution de- 
pends upon an adjustment of conflicting averments of fact and the ap- 
plication thereto of a proper construction of legal principles. In prac- 
tice the original jurisdiction in the administration of the public land 
laws is lodged with nearly one hundred district laud officers, and with 
sixteen surveyors-general. Their action is reviewable by the Commis- 
sioner of the General Land Office, and his in turn by the Secretary of 
the Interior. The rule is settled that, within the scope of their author- 



PUBLIC LANDS. XV 

ity, tbe findings of fact by these executive officers are final; but that the 
correctness of their application of the law is reviewable by the judiciary. 
It would seem to follow that the conduct of this extensive litigation 
before the executive should be governed by settled rules, which should 
define with sufficient precision the rights of litigants and the methods 
by which their claims of right should be ascertained and adjusted. Hith- 
erto such control has mainly rested upon the loose and changing prac- 
tices of executive regulations. So far as the commission has been ad- 
vised, the preemption law is the only statute which in general terms 
enacts a right of appeal, and that nakedly affirms the right, but is silent 
upon the methods of its prosecution. Under all other statutes a review 
of the action of subordinate officers in the public-land service has de- 
pended upon the supervisory authority of their superiors, and it is in- 
voked by claimants, subject to the arbitrary regulations or caprice of 
executive discretion. The privilege of review allowed to one claimant 
may be denied to another. If allowed, it may be under different condi- 
tions, of time and mode of presentation. The present Secretary of the 
Interior has sought to regulate these and kindred defects by adoption 
of sundry rules of practice : but the authority for such rules is not clear, 
and should be supported by express statute. We have therefore sought 
to leave in the Commissioner or Secretary unlimited discretion to super- 
vise the operations of the Land Department, when in their opinion the 
public interests require their intervention ; but we have fixed the time 
and conditions within which claimants could by appeal compel such in- 
tervention. We have made snch appeal a matter of right, and not of 
privilege ; we have fixed a period to its operation, and have prescribed 
the conditions of its prosecution. If adopted by Congress, these pro- 
visions will not only extend the security of statute over the appellate 
prosecutiou of public-laud controversies in the executive departments ; 
but will assure a seasonable prosecution, and cut off stale claims. The 
occasion for much of executive delay in the settlement of contests will 
thereby be avoided. 

SURVEYS AND SURVEYORS. 

The rectangular system of land-parceling surveys and the division of 
public lands into townships, sections, quarter sections, and quarter 
quarter-sections was devised by a committee of the Continenal Con- 
gress, consisting of Messrs. Jefferson, Williamson, Howell, Gerry, and 
Eeas, who, on the 7th of May, 1784, reported "An ordinance for asce/* 
taining the mode of locating and disposing of land in the Western T jfle 
ritory, and for other purposes therein mentioned." The chairman of 
the committee was Thomas Jefferson, of Virginia, then a Delegate to 
Congress. 

The ordinance was considered, debated, and amended ; and on the 
3d of May, 1785, on motion of Mr. Grayson, of Virginia, seconded by 
Mr. Monroe, the size of the townships was reduced to six miles square. 
It was further discussed until the 20th of May, 1785, when it was finally 
passed. (Tide Public Land Laws, Instructions, and Opinions, part 1, 
page 11.) 

The system thus initiated has gradually been amended by subsequent 
acts of Congress, approved as follows : 

Mav 18, 1796. (U. S. Laws, vol. 1, page 461.) 

May 10, 1800. (L T . S. Laws, vol. 2, page 73.) 

February 11, 1805. (U. S. Laws, vol. 2, page 313.) 

April 24, 1320. (U. S. Laws, vol. 3, page 566.) 



XVI PUBLIC LANDS. 

April 5, 1832. (IT. S. Laws. vol. 4, page 503.) I 

May 30, 1862. (U. S. Laws, vol. 12, page 409.) 

The second section of the last-cited act legalizes tlie Manual of In- 
structions to the Surveyors General, prescribed according to law by the 
principal clerk of surveys, pursuant to order of the Commissioner of the 
General Land Office in 1855. 

All land-parceling surveys have been made under this system since 
its adoption. Changes or a departure from it under certain circum- 
stances have been authorized by law, but have never been adopted in 
practice. 

Nearly a century of experience under this law has proved the wisdom 
of it. Unlike many other methods or systems in business or science 
which owe their excellence to growth and experience, this system came 
from the hands of its founders so perfect and well adapted to the pur- 
pose for which it was intended that no organic change has been found 
necessary in practice, though authorized by law. But the means or 
methods of giving effect to the system have been the subject of frequent 
legislative enactments. 

It was perhaps never intended or expected that land-parceling surveys 
should be made with the same accuracy as surveys made by the Super- 
intendent of the Coast and Geodetic Surveys. Such accuracy would 
be impracticable and unnecessary in land- parceling surveys which have 
for their objects accuracy of description and location on the earth's sur- 
face with reference to meridian and base lines established for the pur- 
pose of description of lands after survey. 

The present system cannot fail to commend itself to all when it is 
remembered that under it the survey and numbering of principal merid- 
ians, townships, ranges, and sections, each smallest subdivision or 
forty-acre tract, may be instantly pointed out on any part of the map of 
the United States where the surveys have been extended. 

A whole continent may be divided into tracts of forty acres or less, 
and the description of no two tracts be the same or so nearly the same 
as to create confusion. 

Objections have seldom if ever been urged against the plan of survey- 
ing provided by existing laws, but objections have been urged against 
the manner of performing the work on the ground. The task of remov- 
ing these objections is the one to which the committee addresses itself. 

In consequence of the rapid settlement of the Western States and Ter- 
ritories, large areas of country had to be surveyed on short notice, 
rnihese surveys were made under contract not above the maximum price 
*h£ed by law. Much of the country surveyed was situated at long dis- 
tances from the offices of the surveyors-general. 

No adequate system of inspection was provided for by appropriation 
to defray the expense of such inspection, and consequently all has had 
to be left to the honesty of the deputy having the contract. In addition 
to the surveys rendered necessary by the rapid progress of settlement, 
other large areas have been surveyed into tracts of one hundred and 
sixty acres, which should not have been surveyed until such time as 
actual or prospective settlement in the near future required them to be 
made. 

In cases where surveys have been made long prior to settlement, and 
marked only by the imperfect and cheap methods of monumentation al- 
lowed by law, some difficulty has been found in tracing the lines and 
finding corners, which facts have to some extent caused accusations of 
fraud, in the surveys, to be made when perhaps, in fact, no real grounds 
for such accusations existed. 



PUBLIC LANDS XVII 

J 

The provisions of law relative to mouuinentation seem to have been 
made in contemplation of being able, in all places, to find " witness trees" 
for or to each corner, and wood or stone in abundance and near at 
hand, for monuments ; consequently no provision of law has ever been 
made for procuring monuments which would cost anything more than 
monuments of wood or stone found near at hand, or by marking the cor- 
ners by a mound of earth. 

It does not appear to have been considered when the law was enacted 
that surveys would necessarily have to be extended over great areas 
like the plains of Kansas, Nebraska, and Dakota, where neither stone 
nor timber could be procured without considerable cost, and where 
mounds could be easily destroyed by the wind or by stock, owing to 
the light character of much of the soil. 

The evils complained of in surveys heretofore made appear to be 
three : first, a waste of money by surveying into small subdivisions 
swamp and arid lands, which may not soon if ever be used or occupied 
in tracts less than a township; second, difficulties arising in retracing 
lines and finding corners, owing to imperfect monumentation; third, 
inaccuracies in surveying and measuring the lines, alleged to be in con- 
sequence of letting contracts for the surveys, instead of having the 
work performed by deputies receiving a fixed monthly or annual salary. 

To prevent the recurrence of the alleged evils, the commission deems 
it best to recommend that hereafter lauds which are notoriously swamp, 
which have been granted to the States, aud pasturage lands, may be 
surveyed and patented by townships ; that a proper s} T stem of monu- 
mentation may be prescribed by the Commissioner of the General Land 
Office, and that the cost of monuments shall be paid from appropriations 
for the survey of public lands ; that all surveys of public lauds shall here- 
after be made by deputies, who shall be paid a salary by the day, month, 
or year, except in such cases as may arise where it would be manifestly 
for the interest of the government to have the work performed under 
contract. 

It is also thought best to recommend that hereafter all boundary lines 
of States and Territories which remain to be surveyed, and corrections 
of those already surveyed, shall be surveyed under the direction of the 
Superintendent of the Coast and Geodetic Surveys; for the reason that 
the survey of said boundaries requires instruments and qualifications 
which do not necessarily appertain to land-parceling surveys and sur- 
veyors. It is also proposed that the Superintendent of the Coast and 
Geodetic Surveys shall connect with his surveys such monuments of the 
laud-parceling surveys as he may find in extending his surveys. 

The foregoing comprise all the radical changes which the commission 
deem it proper to recommend. Some immaterial changes are recom- 
mended which will appear by a comparison of the existing with the pro- 
posed law. 

The commission is of the opinion that the salaries of surveyors-gen- 
eral should be uniform and three thousand dollars per year. The pro- 
posed legislation requires that all surveyors general hereafter appointed 
shall have scientific and practical knowledge of surveying, and it is sub- 
mitted that men possessing such qualifications and others fitting them 
for the responsibilities of such an office should be entitled to the salary 
named. The salaries of the deputy surveyors are also fixed at a rate 
not exceeding three thousand dollars per year for the time employed in 
the field, the actual amount to be fixed by the Commissioner of the 
General Land Office, with the approval of the Secretary of the Interior. 
H. Ex. 46 II 



XVIII PUBLIC LANDS. 

REGISTERS AND RECEIVERS. 

Section sixty -three of tbe act proposed by the commission reads as 
follows : " There shall be appointed by the President, by and with the 
advice and consent of the Senate, one officer for each laud district es- 
tablished by law, who shall be styled register of the land office." By 
section sixty-five it is provided that sach registers shall be allowed an 
annual salary of three thousand dollars. The office of receiver of pub- 
lic moneys is not provided for or continued by the proposed legislation, 
as, in the opinion of the commission, no necessity for such an office ex- 
ists. There were no such officers in the beginning of the public land 
system. They seem to have been appointed for the purpose of attend- 
ing land sales in the northwest territory to receive and convey the money 
to the Treasury of the United States. If facilities had existed equal to 
those of the present day for transmitting and depositing money, it is 
not probable that any receivers would ever have been appointed. If a 
necessity for receivers of public moneys arising from sales of land ever 
did exist it no longer exists. The sales of land for cash is no longer the 
policy of the government. The amount of money received in any 
one year is not large. Safe and reliable express companies have officers 
in nearly every town where a land-office is located, and these facts 
at least lessen the necessity for such an officer. By executive regulation 
some other slight duties have been required of receivers, such as hear- 
ing contested cases, and joining with the register in giving opinions in 
cases heard. It is thought that the receiver concurs in the opinion of 
the register more frequently than he hears testimony or assists in form- 
ulating the judgment. For the reasons given and others which might 
be, if necessary, the commission is of the opinion that two heads to a local 
land office are not more necessary than a duplication would be in any 
other office, There were in the fiscal year 1879 ninety-four local land 
offices, each having a register and receiver at a salary of $500 a year, and 
each was entitled to $2,500 more, provided the business of the respective 
offices entitled them to that amount. The gross amount actually paid to 
the one hundred and eighty-eight registers and receivers for the year, 
was $373,554.99 or an average of $1,986.99. If there had been but ninety- 
four registers, at $3,000 each, a saving of $91,554.99 would have been ef- 
fected, and the work performed in a more satisfactory manner by reason 
of having a good and well paid officer in each office wholly responsible 
for the work. At many of the local land offices, where the business is so 
small that the salary and emoluments amount to less than $1,000; good men 
cannot be induced to accept appointments as registers and receivers and 
the result is that the work is badly done, which causes much labor and 
expense on the part of the General Land Office, making it eventually cost 
the government more than it would have done had a competent man 
been employed in the first instance, at a salary of $3,000 a year. 
In many ot the local laud offices there has hitherto been neither order 
nor system. The business has been neglected, the books not having been 
posted, and neither the papers pioperly filed nor letters answered. This 
condition more frequently occurs in the offices doing but a small amount 
of business than in offices doing more. It is often the case in offices 
where but little work is to be done, and consequently but little pay to be 
received by the officers, that they entirely neglect the business. The 
little they do consists of sending up a monthly statement of the few 
entries made or declaratory statements filed. The data upon which the 
returns are based being loose papers aud memorandums, which are left 
carelessly lying about the offices and finally lost before the tract and 



PUBLIC LANDS XIX 

plat books are written up. The manner of doing business in such offices 
as those described results in duplicate entries and filings, causing much 
confusion, expense, injustice, and greater cost to the government than 
would accrue under a better system and with better paid officers. 

CLASSIFICATION. 

The administration of land affairs in the United States, with its sys- 
tem of parceling, methods of survey, and modes of disposal, was inau 
gurated at a time when all the lands were considered as available for 
agricultural purposes. It is true that differences were found in quality 
of soil, in topographic features, and in the character and value of the 
growing timber, but the general physical conditions were such that on 
all of these lands agriculture could be prosecuted with a certainty of 
reward by relying on climatic conditions relating to rainfall and tem- 
perature. That is, all of these lands were supposed to be arable 

LANDS. 

Later it was discovered that great values existed in lauds bearing- 
certain minerals, as coal, irou, lead, and copper, of much importance to 
the industries of the country. By various methods an attempt was 
made to dispose of these mineral lands — all local or temporary — until 
gold and silver were discovered in California and the adjacent country. 
The rapid development in mining industries in this region of mineral 
wealth led to the practical establishment of a second class designated 
as mineral lands. The establishment by statute of this new class merely 
confirmed the local customs where the mining operations were in pro- 
gress, and thus supplied a want demonstrated by wide experience. 

The method of disposing of the public land by homestead settlement 
was in vogue in the western portion of the United States during the 
very time of the chief development of mining industry, aud this method 
was justly popular among the settlers themselves and with a large ma- 
jority of the people of the United States. But homestead settlement 
was applicable only to agricultural land, and the mines were usually 
found in lands having little or no agricultural value. Great numbers 
of people went to the mountains in quest of speedy wealth, and not for 
the purpose of making homes by settling on the mountain sides as agri- 
culturists. The army of prospectors which roamed from mountain range 
to mountain range, burrowing into the earth everywhere on the slightest 
indication of gold or silver, was composed of persons who desired to 
obtain titles to mines. As the region was a wilderness, and the author- 
ity of the general government was but imperfectly extended over the 
country, the miners framed for themselves regulations for their own 
government — crude, it is true, but in a general way securing justice. 
Under these local regulations or laws, possessory rights to mineral lands 
were acquired which were afterwards confirmed by statutory law, and. 
thus this secoud class of lands was practically recognized in the admin- 
istration of land affairs. Had the mining region of the West been occii ■■ 
pied in such a manuer as to have placed all the mineral lauds in private 
ownership, it is not probable that the first discovery would have led to 
any great system of prospecting, as the adventurer would hive been 
barred from private lands, and the mining industry which has so rap- 
idly grown up in that country would have been delayed for years, per- 
haps for centuries. A wilderness of unoccupied land was a primary 
condition of rapid discovery, as on public land every man might search 
for precious metals where he pleased, and on public lands every mac 
might acquire property rights in discovered values. Under these con- 



XX PUBLIC LANDS. 

ditious thousands of poor men, lured by the hope of discovering gold 
and silver, traversed the mountain ranges of the far West with pick, 
shovel, and pan, scrutinizing every indication of the presence of ores, 
and thus an army of men was engaged in discovery. Free exploration 
and the right to acquire property in mines by discovery led to the estab- 
lishment of the great mining industries of the West. 

While the establishment of mining industries depends upon the con- 
ditions above enumerated, its permanent prosperity depends chiefly upon 
deep mining. Deep mining is secured by aggregating the small hold- 
ings acquired by discovery into holdings sufficiently large to warrant, 
expensive fcb plants" in works and machinery. Thns a wise system of 
administering affairs relating to mining lands must recognize the im- 
portance of discovery in which poor men can engage, and the impor- 
tance of deep mining, which requires aggregated capital. Summarily 
stated, it is essential to recognize the following facts relating to mineral 
lands : 

1. The values of mineral lands are chiefly subterranean. 

2. The mineral lands bearing gold and silver are chiefly in mountain- 
ous regions. 

3. It is frequently the case that large values are found in very small 
areas. 

4. Values are not immediately apparent, but must be discovered. 

5. The development of mining industry in precious minerals depends 
primarily and chiefly upou the progress of discovery. 

G. The permanence and continued prosperity of the industry depends 
upon deep mining, which requires aggregated capital. 

It is apparent from these considerations that a system of administra- 
tion relating to the survey and disposal of lands chiefly valuable for 
their ores must differ widely from that relating to arable lands, and 
hence it is necessary to recognize a class of mineral lands. 

Under the general head of mineral lands a sub-class of coal and iron 
lands is practically recognized by providing for their disposal in a man- 
ner differing from other mineral lands. 

Coal is not fouud to occur in the same geological manner as gold, sil- 
ver, and other minerals of like geological distribution. A coal bed is a 
stratum interbedded among other strata. Workable gold ores are found 
in fissures or otherwise irregularly aggregated in rocks stratified or un- 
stratified, but, perhaps, never found in a regularly deposited stratum 
interbedded among other strata. A single continuous stratum of coal 
may extend over a very large area ; a single deposit of gold or silver ore 
has an exceedingly restricted area. In many other ways the two classes 
of deposits differ widely. 

Iron sometimes has the same method of occurrence as coal and some- 
times as gold, and thus in geological distribution is allied to both classes, 
but it is thought best to include iron with coal, and to provide for the 
sale of coal and iron lands in larger tracts than gold and silver lands, 
and without the conditions and restrictions imposed on the latter. 

Westward in the United States the continuity of arable land is broken, 
so that in the Pacific half there is a vast area where agriculture is de- 
pendent upon artificial irrigation. These lands are not immediately 
available to the settler for agricultural homesteads; they must first be 
redeemed by conducting the waters from the rivers aud creeks over them 
by canals ramified through the tracts to be cultivated. 

In the proper administration of affairs relating to these lands, it is 
necessary to consider the following facts : 



PUBLIC LANDS. XXI 

1. These lands, in their natural condition, cannot be used for agri- 
culture. 

2. These lands, to be of any value, must be irrigated by conducting 
the running waters of the region upon them. 

3. In general it is not practicable to redeem them in small quantities. 
Economy demands that all of a stream should be utilized in irrigation 
when it has once been taken from its natural channel. Hence their re- 
demption requires the investment of aggregated capital. 

It thus appears that special laws must be enacted for the disposal of 
these arid lands, and hence the necessity of recognizing a class of ir- 
rigable LANDS. 

In all of that region where agriculture is impossible without irriga- 
tion the streams are comparatively small and infrequent, and the water 
which they will afford for irrigation is limited to such an extent that 
only a small part of the land can be irrigated thereby. But these arid 
lands have a value, as experience has abundantly shown. They 
bear scant but nutritious grasses, and flocks of sheep, herds of cattle, 
and bands of horses are pastured thereon. A great pasturage industry 
has thus grown up on lands belonging to the general government, for 
which at present there is no adequate protection, as the people en- 
gaged in these pursuits have no proper titles to the lands which they 
occupy. 

In the administration of affairs relating to these lands it is necessary 
to observe the following facts: 

1. These lands are so arid that in their natural condition they cannot 
be used for agriculture. 

2. These lands cannot be redeemed by irrigation, as the waters of the 
living streams are not sufficient for that purpose. 

.*>. These lands bear no timber of commercial value. 

4. These lands are valuable in large quantities for pasturage purposes. 

5. To a very large extent these lands are already occupied by people 
engaged in pasturage industries. 

From these considerations it appears that a land system adapted to 
arable lands, mineral lands, or irrigable lands will not meet the wants 
of people who are to occupy the pasturage lauds. Hence it is neces- 
sary to recognize a class of pasturage lands. 

Throughout this same general region, where the irrigable and pastur- 
age lauds are situate, the high plateaus and mountains are, to a greater 
or less extent, covered with forests valuable for timber for commercial 
purposes. But these lands are not arable by reason of inexorable cli- 
matic and topographic conditions. In this region all forests grow at 
altitudes where summer frosts and snows forbid successful culture. 
For these reasons they are not available for agricultural purposes, either 
with or without irrigation. The precipitous mountain slopes and cailou 
walls that dissect the plateaus make access to the forest land exceed- 
ingly difficult, and these forest lands are distant from tne irrigable lauds 
that lie along the rivers and creeks. Thus, in general, the forest lands 
are not accessible to the agriculturists who settle upon the irrigable 
lands, but railroads, flumes, or other means of transporting the timber 
from the mountains to the valleys must be constructed for the proper 
utilization of the timber. 

During the short summer these lands are valuable for pasturage pur- 
poses, but such value is inconsiderable in comparison with the value of 
their forests for timber purposes. All of these forest lands, with cer- 
tain exceptions in favor of mining industries, should be treated as 
timber lands, principally valuable for no other purpose, but of enor- 



/ 



XXII PUBLIC LANDS. 

mous value for their forests, if properly protected from destruction, as 
these are the only timber lauds of all the region where irrigable lands 
and pasturage lands are found, and of the greater part of the region 
where the mines of gold and silver occur. 

Hitherto, in the settlement of the arable lands of the United States, 
all forests growing thereon have been considered quite as much an 
injury to them as a benefit, for while on the one hand the timber was 
valuable to the settler for building and fencing purposes, on the other 
hand it was an obstruction to the progress of cultivation, and the cost 
of clearing fields was scarcely counterbalanced by the benefit derived 
from the supply of timber and fuel. But the primeval forests of the 
arable lauds have been everywhere invaded, and to such an extent have 
they been destroyed by the ax and by fire, that the remaining forest 
lands of the arable region are obtaining a greater relative value as forest 
than as agricultural lands. 

Under these circumstances it seems wise to preserve such of the 
forests of the country as are of prime value for the timber which they 
will produce rather than to permit them to be used for agricultural pur- 
poses, and the forests destroyed. 

In dealing with the forest lands the following facts must be con- 
sidered: 

1. In that vast area in the West where agriculture depends upon irri- 
gation the forests are on the mountains and plateaus. 

2. These lands are of value chiefly for the forests which they bear. 

3. These forest lands are not immediately accessible to the agricul- 
turists on the irrigable lands. 

4. To utilize the timber in the industries of the country it is necessary 
to invest capital, not only tor the purpose of manufacturing lumber, bur 
also to provide means of transportation for the lumber to the districts 
where it is to be used. 

5. These timber-lands are, to a greater or less extent, mineral lands, 
and bear great subterranean as well as surface values. 

6. The most valuable lands of the arable region should be reserved as 
forest-lands. 

All of these considerations necessitate the establishment of a class ot 

TMBER-LANDS. 

The commission has endeavored to carefully defiue the five classes of 
land above enumerated so that each definition should be properly inclu- 
sive and exclusive. The practical application of this system of classifi- 
cation of the lands themselves is to be executed by the surveyors in the 
field, and the evidence upon which the classification is based is to be set 
forth in the plats and field-notes of the surveyors. But this official 
classification may be modified or changed upon proof of error satisfac- 
tory to the Commissioner of the General Land Office, in accordance with 
regulations to be prescribed by him. And it is further provided 
" that the issue of the patent by the United States shall, in the absence 
of fraud, be conclusive as to the character of the laud covered thereby."'' 

HOMESTEAD ENTRIES. 

The great body of public lands are situated in the western portion of 
the United States. In that region the method of -disposing of these 
lands by homestead settlement is in great favor, and the homestead sys- 
tem is widely popular throughout the United States. The maxim that 
" He who tills the soil should own the soil" is accepted as a fundamental 
principle of political economy. The condition of agricultural industry 



PUBLIC LANDS. 



XXII]> 



involved in large holdings with tenant farmers is obnoxious alike to the 
traditions of the people and the principles enunciated by statesmen and 
publicists. Small holdings distributed severally among the tillers of the 
soil is believed to be a fundamental condition for the prosperity and happi- 
ness of an agricultural population. In so far as this condition is affected 
by the administration of land affairs under the general government, dis- 
posal of the public lands to homestead settlers is the most efficient 
method of securing the desired end. If provisions should be made to 
sell the lauds in limited quantities, the plan would be made inoperative 
to secure small holdings, unless such purchased lands were made inalien- 
able for a terra of years, and purchase at anything more than a nominal 
price would operate against the very men who seek to establish homes 
in the uninhabited districts and operate in favor of those desiring to 
purchase lands solely as a speculative investment for capital. The essen- 
tial principle of the homestead law is the maxim above quoted, and it oper- 
ates to secure that end by primarily giving title to the land to the per- 
sons who themselves till the land, as residence and cultivation are the 
chief conditions on which the property is secured. The simple state- 
ment of this principle is a complete vindication of its wisdom and benefi- 
cence. 

Since the passage of the homestead act entries of public land have 
been made under its provisions as follows : 

Statement of number of acres entered under the homestead laws from the date of the original 
act, May 20, 1862, iq) to and including June 30, 1870. 



Fiscal year ending June 30 — 

Acres. 

1863 1,040,988.51 

1864 1,261,592.61 

1865 1, 160,532.92 

1866 1,892,516.86 

1867 1,788,043.49 

1868 2,328,923.25 

1869. 2,737,365.05 

1870 3,698,910.05 

1871 4,600,006.23 

1872 4,670,002.14 



1873 


Acres. 
3,793.612.52 


1874 


3,519,861.63 


1875 


2, 356, 057. 68 


1876 


2, 875, 974. 67 


1877 


2,178,098.17 


1878 


4,418,344.92 


1879 


5, 260, 111. 29 






Total 


49,582,591.99 



Statement of number of homestead entries from the date of the original act, May 20, 1862, up 
to and including September 30, 1879. 



Calender year — 

No. of entries. 

1863 13,356 

1864 7,921 

1865 .- 12,968 

1866 15,973 

1867 19,369 

1868 23,542 

1869 30,054 

1870 34,443 

1871 42,694 

1872 33,514 



Ko. 



1873. 

1874. 
1875. 

1876. 
1877. 
1878, 
1879, 



up to September 30 . 



of entries. 
34, 670 
25, 179 
22, 230 
21,886 
23, 036 
37, 823 
34, 344 



Total 435,002 



The table only runs to September 30, 1879. Completed to the present 
time the number would exceed half a million. 

During the time in which this law has been in operation half a mil- 
lion of homes have been established on land previously unoccupied ex- 
cept as the hunting-ground of savages and the feeding-ground of wild 
beasts. It is reasonable to suppose that the greater part of the people 



XXIV PUBLIC LANDS. 

who have been thus benefited could not have obtained title to lands 
under a purchase system. Perhaps, uuder the benefits of this act, 
4,000,000 of people are now living in their own homes, cultivating 
their own soil, with that feeling of responsibility to society and sense of 
dignity in citizenship which comes with proprietory rights in land. 
But for this wise provision the majority of those people would be home- 
less. Impelled by such considerations, the commission is constrained 
to recommend that all the arable lands of the western portion of the 
United States be held for the benefit of actual settlers under the home- 
stead act. 

It will be noticed that the system ot acquiring titles to homesteads of 
1G0 acres each applies alike to arable, irrigable, and pasturage lands, but 
not to mineral and timber lauds. 

In the history of land affairs a great step was taken in passing from 
the method of disposal by unconditioned sale to the pre-emption meth- 
ods. By " pre-emption," lands were sold to actual settlers on deferred 
payment. This privilege has served a valuable purpose, but it is now 
less frequently used, as those who wish to obtain homes prefer to avail 
themselves of the homestead privilege. Poor men who cannot pur- 
chase at once have their wants supplied by gift, aud if lands are to be 
sold at all there is no substantial reason why payment should be 
deferred. Its only use now is to increase the size of holdings — a re- 
sult of doubtful value. It appears from evidence before the comnission 
that a very large number of the people residing in the region where 
land yet remains in the public ownership desire its repeal. For all these 
reasons the commission has recommended that it be stricken from the 
statutes. 

Under the terms of the act authorizing the organization of this com- 
mission, recommendations for the sale aud disposal of lands are limited 
to the western portion of the United States. For this reason exception 
has been made in the bill drawn by the commission to the operation of 
the clause reserving all the arable lands to homestead settlers in the 
S.ates of Arkansas, Louisiana, Mississippi, Alabama, and Florida. In 
th ese States the public lands are now open to entry by homestead meth- 
ods and by purchase. 

TIMBER-CULTURE ENTRIES. 

In the central portion of the United States there is a vast area of 
arable land, of the highest value for agricultural purposes, destitute of 
timber, generally known as the prairie region and the western portion 
of the great plains. On these lands it is greatly desirable that trees 
should be cultivated, and for this purpose laws have been enacted, 
known as timber-culture laws. Under the various statutes enacted for 
this purpose, inchoate titles to land have been secured, as set forth in 
the following schedule: 



PUBLIC LANDS. XXV 

Xumber of acres of land disposed of under the Umber-culture act. 



States and Territories. 1877. 1878. 1879. Total. 



Arizona - 2,440 1, 600 3,280: 7. 320 

California 10,906 8,189 ! 15,618 34.713 

Colorado 3,023 15,474 15,962 34.4.59 

Dakota 68,188 579,804 731,687, 1,379,679 

Idaho 7,035 22,169 22,634 51,808 

Iowa : 4,791 I 7,537 6,577 18,905 

Kansas , 238,020 592.654 1,115,659 1,946.333 

Louisiana > 80 80 

Minnesota 76, 020 , 348. 508 257, 552 682, 080 

Montana 398 960 3, 134 4. 492 

Nebraska. 86,933 195,652 465,968 748.553 

Nevada 240 600 160 1,000 

XewMexico 320 1,891. 2.211 

Oregon 2,509 18,446 17, 046 . 38.001 

Utah 418 1,200 2,32s 4,026 

Washington 19, 746 ; 77.237 66,990 163,973 



Total 520, 667 1, 870, 430 2, 726, 566 5, 117. 663 



it will appear from an inspection of the above schedule that the ope- 
rations of the timber-culture law are chiefh confined to the prairie lands 
and the eastern portion of the great plains. Wherever land is covered 
with native forest, it is not applicable, and wherever land is so arid that 
timber cannot be cultivated without irrigation it is practically inopera- 
tive, (1) because of the excessive cost of irrigation ; and, (2) becaus: 
lands that are redeemed by irrigation are more valuable for other pur- 
poses. Nor is there any pressing necessity tor timber-culture laws ap- 
plicable to irrigable land, for wherever irrigating canals are constructed 
their banks are planted with trees as a protection to the canals as well as 
to secure a growth of timber, and even where this precaution is neglected 
native trees spriug up from seeds deposited by natural methods, so that 
in any case the irrigating canals are soon bordered with a vigorous and 
valuable growth of trees. 

But within that region where trees will grow without irrigation, and 
which is naturally devoid thereof, it is a desideratum of the highest im- 
portance that trees should be cultivated to afford a convenient and 
economic supply of fuel and timber for the inhabitants of the country, 
to protect the fields and flocks from the fierce storms of an unwooded 
region, and to check the great floods of the rainy season by which the 
land adjacent to rivers and creeks is so frequently injured. 

Objection has been urged against timber-culture laws by those most 
familiar with their workings that advantage has been taken of them to 
secure for a term of years the withdrawal of lands from actual settle- 
ment, and the utilization of the same under inchoate titles without sin- 
cere purpose on the part of persons assuming to obtain titles thereto 
to actually cultivate timber trees. 

In the timber culture chapter prepared by the commission an attempt 
has been made to secure the substantial benefits of such a law, and to 
avoid its abuse by restricting its benefits to those persons who are 
making, or have actually made, homesteads upon the public land, and 
debarring those who would make entries of laud for speculative pur- 
poses from the benefits of its operation. 

Those who are actually making homesteads on the public lauds are 
the persons most deeply interested iu executing provisions for securing 
the growth of timber, and it is believed that they would, under ordinary 
circumstances, faithfully comply with the requirements of the law ; whhe 
those persons not actually making homesteads on the public land, but 



XXVI PUBLIC LANDS. 

simply desiring to acquire title to land for speculative purposes, would 
be persons who would comply with the provisions of the act in the most 
perfunctory manner. 

TOWN-SITES. 

Thecommission report the existing law iu relation to town-sites, with the 
inoperative sections eliminated. Two different systems have heretofore 
applied to this same subject- matter — one has been the entry by the county 
judge, or municipal authorities in trust for the inhabitants, and the other 
has been a direct sale by the United States to the individual occupants. 
Only two cities, Petaluma in California, and Virginia City in Nevada, 
have sought to avail themselves of the latter law. After expensive effort 
to utilize its cumbrous machinery, those towns abandoned the effort. All 
other towns upon the public lands have been entered under the first law; 
and as its value is settled by experience, the commission recommend its 
continuance and the repeal of the alternative system. 

The opening of a mining camp is necessarily attended with the settle- 
ment of a village or town. These usually spring up with great rapidity, 
their growth being in the ratio of the public attention attracted to the 
mines. Streets and alleys are opened and blocks of buildings erected 
in the supposed vicinity of the mines, but without intent to trespass upon 
the surface ground overlying such mines. Ou the other hand, the 
underground workings of the mines are pushed without reflecting that 
they are piercing the earth beneath such towns. An apparent conflict 
01 right between the surface occupants and the underground mines is 
thus created, for the adjustment of which existing legislation is defective. 
These rights are capable of segregation without mutual incouvenience 
or disturbance; and we have recommended to that end the insertion iu 
the respective patents of certain special clauses of exception and reser- 
vation. The}- are in liaec verba the language inserted by the Executive 
Department since the Secretary's decision in 1875 in the case of the town- 
site of Central City, Colo. ; and the phraseology has been universally 
acceptable. But as the right to insert such special exception rests purely 
upon 'Executive decision, the commission has deemed it wise to recom- 
mend its being engrafted in the statute. 

IRRIGATION ENTRIES. 

Agriculture is dependent upon irrigation in the southern portion of 
California, in Nevada, Utah, Arizona, Colorado, Wyoming, and the 
greater part of Idaho. Irrigation is also necessary in a portion of Da- 
kota, a portion of Montana, and a portion of Eastern Oregon and East- 
ern Washington Territory. In the four last-mentioned political divisions 
experience has not fully demonstrated the extent of the land ou which 
irrigation is necessary. The area where agriculture is thus conditioned 
is very large. The region thus imperfectly defined is being rapidly 
settled by reason of the discovery of gold, silver, iron, coal, and other 
minerals, and is rapidly becoming a region where gigantic mining in- 
dustries are prosecuted. It is mainly a region without navigable waters. 
so that the importation of food from other regions more favored with 
rainfall is expensive. The home market, necessary to supply the wants 
of the mining population, has, therefore, led to the growth of extensive 
agricultural industries, based upon irrigation; and experience has 
abundantly demonstrated that such agriculture is remunerative; and 
still further, that it is greatly attractive to a large number of persons 



PUBLIC LANDS. XXVII 

desiring to follow agricultural pursuits, for when the land is once brought 
under cultivation by the use of running water, the waters themselves 
are a perennial source of enrichment, superior to any and all other arti- 
ficial fertilizers. The soil of lands cultivated by irrigation cau never be 
exhausted. This industry has already obtained a fair start throughout 
the eutire region where it is properly applicable, and is, in no remote 
future, to be multiplied many times. Millions of people are to be 
thus employed; millions of homes are to be based upon this industry. 
and no impediment should be placed upon it, but it should be fostered 
by a wise system of disposal of the irrigable lauds. The conditions for 
the successful reclamation of these lands, otherwise so arid as to be 
properly designated as "deserts," are as follows: 

The waters of the living streams must be turned upon them. For 
this purpose, in every case the course of some stream must be checked 
and the waters diverted into a canal and carried to the tract, to be irri- 
gated, and there distributed by a ramification of minor canals and 
ditches, and other subsidiary devices, so as to be made to flow completely 
over the entire surface of the land to be redeemed. But the construc- 
tion of the hydraulic works, such as dams and canals, necessary for this 
purpose, demands an outlay of considerable sums of money. In the 
caseof small brooks and creeks, individual faimers may, with their 
own labor or by the investment of a little capital, compass the reclama- 
tion of a single farm. In such cases the general homestead law, appli- 
cabl e to arable lands, is also applicable here, but the amount of land 
that cau thus be redeemed is small in comparison with the whole amount 
that cau be redeemed by the use of all the running waters. To exhibit 
the verity of this statement, two great facts must be fully set forth. 

I. To a great extent only the large streams are available for irrigation, 
though every large stream is in fact made up of a multitude of smaller 
ones, yet there are certain hydrographic conditions that render it al- 
most impossible to use the smaller streams severally but make it neces 
sary to conduct their waters upon the land after they have been com- 
bined into larger streams. The general region of country where irriga- 
tion is necessary has but a small average rainfall, and this rainfall is 
very unequally distributed over the land. It is concentrated chiefly 
along the great highlands — the plateaus and mountains which rise above 
the plains and valleys. The highlands where the grea" body of precip- 
itation occurs are not properly agricultural lands as has been previously 
set forth, and if they were w r ould not need irrigation ; but in this elevated 
region where the rains fall the minor streams are found and the rivers 
have their origin, and to a very large extent all of these minor streams 
unite before the rivers themselves emerge from the highlands. 

In general the rainfall on the lowlands where irrigation is necessary is 
so light that no perennial brooks or creeks are formed, and in general 
only large streams which come from elevated regions course through 
these lower lands, and these are the streams to be utilized in irrigating 
the lowlands. For this reason the agricultural region depeuds chiefly 
upon the utilization of the large streams. 

II. The season of irrigation is in general in the spring and summer 
time when crops are growing, rarely more than three months all told. 
During the remainder of the year the waters run to waste unless reser- 
voirs are constructed for their storage. In many cases people interested 
have already commenced their coustructiou, and eventually the area of 
the irrigable lands will be largely increased by utiliziug, through the 
means of reservoirs, the waters that flow in the non-irrigating season ; 
for the reason that irrigation depends upon the large streams and the 



XXVIII PUBLIC LANDS. 

construction of reservoirs, it is apparent that it can be developed only 
by the use of aggregated capital. It is probable that more than three- 
quarters of all the future redemption of laud by irrigation will demand 
the expenditure of $1,000,000 or more in each enterprise. Under these 
circumstances it is unwise and impracticable to hold the irrigable lands 
for homestead settlement, except iu the very limited instances previously 
mentioned. Poor men cannot make homes on the irrigable lands till 
capital intervenes for their reclamation ; capital will not be invested in 
the redemption of the lands it it must wait for remunerative retains till 
tbe lands are settled by homesteaders after they are redeemed. To induce 
capitalists to invest in these enterprises, they must be permitted to have 
control of the land, and to seek their recompense in the great value 
given to previously worthless lands by their enterprise. For this reason 
it appears that the irrigable lands should be sold in unlimited quanti- 
ties, subject only to the condition that the purchasers do actually re- 
deem the lands by constructing the hydraulic works necessary thereto. 
Should it be feared that this will result in a monopoly ot the irrigable 
lands, it should be remembered — 

I. That poor men cannot reclaim them. 

II. That under the laws of inheritance prevailing in the United State*, 
estates do not remain intact for many generations, but are speedily di- 
vided and subdivided. 

III. That the agriculture carried on under conditions of artificial irri- 
gation much more resembles horticultural than agricultural operations in 
regions of arable land. After a great outlay of capital iu the reclama- 
tion of lands there is necessarily a great outlay of labor in their timely 
and constant irrigation. The minute streams must be trained along the 
rows of growiug plants, or evenly flowed over small areas of levels, all of 
which requires minute supervision that every' plant may reeeive its 
modicum of water, and agriculture under these conditions is most suc- 
cessfully prosecuted with small individual holdings, while large agricul- 
tural operations under these conditions carried on by the employment 
of many laborers cannot be made remunerative to capital. Hence it is 
that these great irrigating enterprises will be undertaken chiefly to se- 
cure the enhanced value given to the land. 

IV. In the United States our people do uot primarily buy lands as a 
profitable investment for money, but chiefly to establish homes, and 
everywhere land is and always will be worth more f>ra homestead than 
for a speculative business. Hence men will seek rather to invest their 
money in enterprises that will yield greater returns. 

On this theory the chapter relating to irrigable lands has been pre- 
pared. 

There is, however, an alternative proposition. The general govern- 
ment or State government may itself construct the hydraulic works 
necessary to the reclamation of these lands, and own and control them 
in such a manner as to derive a revenue from the sale of the water. 
Such is the method often adopted by other governments, but such a 
method is not in consonance with the traditions of the American people, 
but is utterly opposed to the prevalent theories of wise legislation. It 
would require the establishment of a vast irrigating department with an 
extensive retinue of officers and the appropriation of many hundreds of 
millions of dollars. It would therefore seem wiser to invite enterprise 
to these undertakings, and indeed capitalists have not shown an un- 
willingness to undertake the redemption of these lands, but Hitherto 
they have been greatly fettered in their enterprises from the fact that 
they could not freely obtain titles thereto. Should the recommendations 



■/ 



PUBLIC LANDS. XXIX 

of the commission on this matter be accepted by Congress adequate op- 
portunities for the purchase of irrigable lands will be furnished and this 
industry will at once be pursued with vigor. 

PASTURAGE LANDS. 

In the vast area described in the last chapter as being so arid as to 
require artificial irrigation for successful agriculture but a small portion 
of the land can be irrigated. When all the streams are utilized to their 
utmost extent by the construction of reservoirs so that the rainfall of 
the entire year is saved, there will yet be but a small per cent, of the 
lands redeemed. Vast areas many times greater than all the irrigable 
lands will remain to be utilized for other purposes. The most elevated 
portion of the country — the mountains and high plateaus — bear timber 
of commercial value ; but between the lowlands along the larger streams, 
and the highlands covered with forests, there are many millions of acres 
of value only for pasturage purposes. These grazing lands are so scan- 
tily clothed with grass that persons accustomed only to consider lands 
of arable regions would suppose them to be worthless ; but experience 
has shown that the grasses which they support are valuable. They are 
found to be exceedingly nutritious by reason of the great burthen of 
seeds which they bear. Climatic conditions make them further valua- 
ble in that the meager precipitation of moisture, as rain and snow, does 
not beat them down and bury them in the soil, but they are left to stand 
during the winter to cure, forming an uncut hay. Thus it is that winter 
pasturage ou such laud is considered valuable, and will richly support 
herds and flocks throughout the en tireyear even to the northern boundary 
of the United States without resorting to any other supply of food than 
that furnished by the grass standing on the ground. The fact that 
flocks and herds can thus be sustained without any other supply of 
food has already attracted a great number of persons into this pastur- 
age industry, so that the greater part of all the pasturage region as 
above described is covered with all the horses, cattle, and sheep which 
it will sustain. Millions of animals now roam over these lands, multi- 
ply, grow, and fatten, with no other care than to be collected periodi- 
cally and branded, shorn, or driven to market. While these pasturage 
lands are already to so large an extent supporting thousands of people, 
yet the lands remain in the possession of the government, the laws for 
their disposal being such that no practical method is presented by which 
these pastoral people can obtain proper titles thereto. The only method 
of obtaining title heretofore has been by homestead settlement, as the 
lands were not of sufficient value to warrant their purchase by scrip. 
As the people cannot obtain title to the lands, permanent settlements 
are rarely made. To the men living on the government land who raise 
stock by pasturage thereon no inducements to local improvements are 
presented. Homes are rarely found. The owners of stock aud their 
herders live in wagons, tents, or temporary cabins ; schools are not or- 
ganized, churches are not built, highways are not constructed, and many 
of the institutions so intimately connected with the best interests of 
civilized society fail to be established. If these lands are to be occu- 
pied by permanent settlers, and the institutions of modern civilization 
founded, some new method of disposal is imperatively demanded. 

In the adoption of a proper method adequate to the fulfillment of the 
requirements thus indicated the following conditions must be observed : 

I. The lands must be disposed of in quantities sufficient to the estab- 
lishment of a home. 



XXX PUBLIC LANDS. 

., II. The price of these lands must be fixed so low that men can afford 
to take them solely for pasturage purposes ; that is, the farm unit must 
be large and the price of the farm must be reasonable. 

After the most thorough investigation possible for the commission to 
make, the conclusion has been reached that the farm unit should not be 
less than four square miles. It is not believed that this would on a gen- 
eral average be equal to 160 acres of arable laud, but for the best of the 
pasturage land this equivalence may exist, and when the better tracts 
are taken it may be found wise to increase the farm unit. The reasons 
which have impelled the commission to recommend that arable lands be 
disposed of only as homesteads have led to the further recommendation 
that the homestead principle be also applied to these lands, modified 
only to that extent necessary for the successful settlement of such 
lands. Provision has been made for the acquirement of single home- 
steads and also for the acquirement of colony homesteads analogous 
to the provisions for the acquirement of homesteads on the arable 
lands. It is believed that the colony method will be best adapted to the 
pasturage lands and will be the method to which the pastoral people 
of that country will chiefly resort. When these people desire to make 
permanent homes they will wish to have society and the institutions of 
civilized life that can be established only by social co-operation, and: 
these advantages can be secured only by resortiug to the colony home- 
stead plan, for if the pasturage farm unit must be four square miles, 
homes will be thus separated by long intervals- from each other. 
Schools, churches, roads, and all local public improvements will be im- 
possible — social conditions from which the American people will shrink. 
Again, homes on the pasturage lands will be more prosperous when such 
homes have attached to them small tracts of irrigable lauds where gar- 
dens and small fields may be cultivated, but irrigation will itself re- 
quire associated capital or co-operation in labor for its successful ac- 
complishment, and such irrigable tracts can only be successfully culti- 
vated by poor men establishing homes on the colony homestead plan. 
The effect then of this colony plan will be twofold. First. The settlers 
will be enabled to acquire titles to small tracts of irrigable land and by 
cooperation redeem them ; and second, homes will be so grouped in vil- 
lages that society and social institutions and conveniences will be pos ; 
sible. 
/ As the pasturage lands are already largely occupied, if this system 
meets the approbation of the pastoral people who are already in the 
country, these lauds will speedily be taken up, but if this method should 
prove inadequate to their wants, or for any reason be so objectionable as 
not to meet that favor n ecessary to secure the establishment of pas- 
turage homes, a few years' experience will be sufficient to demonstrate 
such inadequacy, and a method of reducing the price of these lands 
y time graduation will in a few years result in placing them iu suck a 
* condition that they cau be purchased at a proper valuation. A gradua- 
tion act applied to arablelands would not securejust results. The mar 
ket value of land in an unsettled country bears no relation to its intrinsic 
value. It acquires market value solely by the progress of settlement, 
and it is only after it has thus acquired a first market value that such 
value is affected by intrinsic qualities. Hence a graduation act would 
have the effect of disposing of the lands to the settlers in later years at 
prices less than in earlier years, though such land soldiu the later years 
might equal in value the lands sold in earlier years at the time of their 
sale by the government. Thus a graduation act applied to such lands 



PUBLIC LANDS. XXXI 

would simply result in discriminating against present settlers in favor 
of future settlers. 

But this argument against a general graduation act could not be prop- 
erly urged against one specially applicable to pasturage lands, for these 
lands are already occupied and have a marketable value, though that 
value is small and depends far less upon the progress of settlement 
with proximity to lines of transportation than upon the qualities inher- 
ent in the lands themselves, for they will produce no agricultural crop, 
no forests can be grown thereon, and their value depends solely upon the 
number of animals they can support ; and the value of these animals, 
unlike the products of field culture, is but slightly affected by means 
of transportation. Hence the graduation act applied to the pasturage 
lands would secure proper results and substantial justice to the settle! s 
thereon. 

SALE OF TIMBER. 

By the proposed classification of public lands "all lands, excepting 
mineral, which are chiefly valuable for timber of commercial value for 
sawed or hewed timber, shall be classified as timber lands." 

By this classification all timber-bearing lands which are mineral or 
agricultural, and all lands bearing timber which does not possess value 
for sawed or hewed timber, are excluded from the classification as tim- 
ber lands. 

Timber lands, as thus defined, comprise a comparatively small area. 
In Arkansas, Louisiana, Mississippi, Alabama, and Florida, but little, 
if any, lands will fall under the classification. 

There may be small areas in Michigan, Wisconsin, and Minnesota, 
which should come under the classification, but the existence of such 
tracts is a matter of doubt, and consequently the classification will prob- 
ably only include lands in the Territories and Pacific States. 

In presenting a proposed law for the sale of timber and the retention 
of the soil, it becomes necessary to give, as briefly as may be consistent 
with the importance of the subject, the reasons for the departure from 
the custom of selling the soil. 

The most valuable timber in the Territories, and in the States on the 
Pacific coast, grows upon lands possessing very little, if any, value for 
agricultural purposes. 

Large areas of the land in the Territories and Pacific States are either 
known or supposed to be more valuable for minerals than for any other 
purpose. Where the mineral character of the land is known, it is, of 
course, sold as mineral, without regard to the value of timber. 

The rate of consumptiou and the destruction of timber by fires in the 
United States have been so great during the past twenty-five years as 
to cause alarm, not only on the part of thoughtful men at home, but in 
all countries not producing timber supplies equal to their wants. 

The area of timber land, according to the classification, is small, aud 
its retention by the government neither withdraws nor withholds agri- 
cultural lands from settlement. 

The commission is of the opinion that the provision for the sale of 
the timber upon alternate sections only, and reserving all which is less 
than eight inches in diameter, as well as the fee in the soil, will result 
in the maintenance and reproduction of the forest. The experiment is 
at least well worth trying. 

Referring to the necessity for the legislation recommended, or some 
other, it is proper to say that much difficulty is encountered in trying 
to suppress depredations upon the timber on the public lands. The 



XXXII PUBLIC LANDS. 

difficulties arise from a variety of causes, chief among which has beeu 
and stiii is the impossibility of purchasing, in a straightforward, honest 
way from the govern uient, either timber or timber-bearing lands. 

Until a very recent date, no public lands in the States of Arkansas, 
Louisiaua, Mississippi, Alabama, or Florida could be procured in any 
other manner than by a compliance with the homestead law. This con- 
dition of the law was the primary cause of thousands of fraudulent 
homestead entries. It was no uncommon thing for one person or one 
firm engaged in the timber or turpentine trade to procure to be made 
large numbers of homestead entries with apparently no intention of 
complying with the law. So far as relates to the States mentioned this 
condition no longer exists, as the lands have all been brought into 
market under the act of June 22, 1876, and rendered subject to sale at 
$1.25 per acre at private entry, and consequently depredations on the 
timber in those States have, to a very great extent, ceased. 

Until the passage of the act of June 3, 1878, entitled u An act for the 
sale of timber lands in the States of California, Oregon, Nevada, and in 
Washington Territory," there was no manner by which timber or timber 
lands in either of the States or the Territory mentioned could be obtained 
excepting by settlement under the homestead and pre-emption laws, and 
by the location of certain kinds of scrip and additional homestead rights, 
which cost several dollars per acre. 

Settlements upou timber-bearing lands in the States and Territory 
mentioned in the act, under the homestead and pre-emption laws, are 
usually a mere pretence for getting the timber. Compliance with those 
laws in good faith where settlements are made on lands bearing timber 
of commercial value is well-nigh impossible, as the lauds in most cases 
possess no agricultural value, and hence a compliance with the law re- 
quiring cultivation is impracticable. 

The commission visited the red-wood producing portion of the State 
of California, and saw little huts or kennels built of " shakes" that were 
totally unfit for human habitation, and always had been, which were 
the sole improvements made under the homestead and pre-emption laws, 
and by means of which large areas of red- wood forests, possessing great 
value, had been taken under pretenses of settlement and cultivation 
which were the purest fictions, never having any real existence in fact, 
but of which " due proof " had beeu made under the laws. 

In some sections of timber-bearing country where there should be, 
according to the " proofs" made, large settlements of industrious agri- 
culturists engaged in tilling the soil, a primeval stillness reigns supreme, 
the solitude heightened and intensified by the graudier of high moun- 
tain-peaks, where farms should be according to proofs made, the myth- 
ical agriculturist having departed after making his il final proof" by 
perjury, which is an unfavorable commentary upon the operation of 
purely beneficent laws. 

The law of June 3, 1878, is onerous, and ameliorates the condition ex- 
isting before its passage but very little, if any ; something further is 
necessary. 

Another act was approved on the 3d of June, 187S, entitled "An act 
authorizing the citizens of Colorado aud the Territories to fell and 
remove timber on the public domain for mining and domestic purposes," 
by the provisions of which settlers and other persons may take timber 
for mining and agricultural purposes from mineral lauds. 

The provisions of this law, when understood, mean but very little. 
Timber may be taken from mineral lands. Perhaps not one acre in five 
thousand in the State aud Territories named is mineral, and perhaps 



PUBLIC LANDS. XXXIII 

not one acre in five thousand of what may be mineral is known to be 
such. The benefit of this law to the settlers is better understood when 
these facts are known. 

The whole subject-matter of existiug laws in relation to the sale or 
disposal of timber-bearing lands may be briefly stated, as follows : 

Timber lands in the States of Arkansas, Louisiana, Mississippi, Ala- 
bama, and Florida may be bought for cash by any persons in any quan- 
tities, or may be taken under the homestead and preemption laws. 

In such parts of the States of Michigan, Wisconsin, Minnesota, and 
Missouri as contain public lands, which are at the same time agricul- 
tural and timber lands, the title may be obtained only under the home- 
stead and pre-emption laws. 

There is no way provided by law for disposing of lands which are 
chiefly valuable fur timber of commercial value in those States, as it 
must be conceded by all that the homestead and pre-emption laws apply 
only to lands valuable for agriculture. 

In the States of California, Oregon, and Nevada, and in Washington 
Territory, timber lands can be bought by certain persons, under certain 
onerous conditions, in quantities not exceeding one hundred and sixty 
acres. 

In the States of Nevada (both the laws approved June 3, 1878, are 
applicable to this State) and Colorado, and in all the Territories except 
Washington, any person may cut and remove all the timber he may 
need for mining and domestic purposes from mineral land. This law, 
strictly observed, would not confer any benefit upon one in one thousand 
of the inhabitants. There is no other law by or under which timber or 
timber lands can be procured in the States and Territories last above 
named. 

The population of two States and seven Territories should not longer 
be compelled by the laws of the country to be trespassers and criminals 
on account of taking the timber necessary to enable them to exist, as 
is the condition to day, and as it has been, according to law, ever since 
settlements were commenced, or since the policy of selling lands for cash 
has been abandoned by the government. 

If the bill proposed by the commission should become a law, timber 
upon agricultural lands may be taken with the land, under the home- 
stead law ; timber or pasturage land may be taken under the law lor 
sale of pasturage land, and also under pasturage homesteads ; and tim- 
ber may be taken from any land not classified as timber or agricultural 
land by ail citizens and others requiring its use. Under the chapter of 
the act referring specifically to the sale of timber, the timber upon alter- 
nate sections of the timber lands may be bought without the soil. These 
provisions, together with the law as it now stands in reference to the 
States of Arkansas, Louisiana, Mississippi, Alabama, and Florida, will 
place all the public timber land of the United States uuder laws for dis- 
posal to persons requiring it, excepting the timber upon alternate sec- 
tions of the lands embraced under the classification of timber lands, and 
thus make it possible for all persons, in every part of the country, to 
get timber or timber land, and at the same time making some provision 
for the retention of the timber on a part of the land and the reproduction 
of it upon another small portion. 

MINERAL LANDS. 

The United States mining laws of 1866 and 1872 are directly descended 
from the local customs of the early California miners. Finding them - 
H. Ex. 46 in 



XXXIV PUBLIC LANDS. 

selves far from the legal traditions and restraints of the settled East, 
in a pathless wilderness, under the feverish excitement of an industry 
as swift and full of chance as the throwing of dice, the adventurers of 
1849 spontaneously instituted neighborhood or district codes of regula- 
tions, which were simply meant to define and protect a brief possessory 
ownership. The ravines and river-bars which held the placer-gold were 
valueless for settlement or home making, but were splendid stakes to 
hold for a few short seasons and gamble with nature for wealth or ruin. 

In the absence of State or Federal laws competent to meet the novel 
industry, and with the inbred respect for equitable adjustments of 
rights between man and man, which is the inheritance of centuries 
of English common law, the miners onl}^ sought to secure equality 
of rights and protection from robbery by a simple agreement as to 
the maximum size of a surface claim, trusting, with a well-founded 
confidence, that no machinery was necessary to enforce their regulations 
other than the swift rough blows of public opinion. The gold-seekers 
were not long in realizing that the source of the dust which had worked 
its way into the sands and bars, and distributed its precious particles 
over the bedrocks of rivers, was derived from solid quartz veins, which 
were thin sheets of mineral material inclosed in the foundation rocks 
of the country. Still in advance of any enactments by legislature or 
Congress, the common sense of the miners, which had proved strong 
enough to govern with wisdom the ownership of placer mines, rose to 
meet the question of lode claims, and decreed that ownership should 
attach to the thing of value, namely, the thin sheet-like veins of 
quartz, and that a claim should consist of a certain horizontal block of 
the vein, however it might run, but extending indefinitely downward 
with a strip of surface, on or embracing the vein's outcrop, for the placing 
of necessary machinery and buildings. Under this theory, the lode was 
the property, and the surface became a mere easement. 

This early Californian theory of a mining claim, consisting of a certain 
number of running feet of vein with a strip of land covering the surface 
length of the claim, is the obvious foundation of the Federal legislation 
and present system of public disposition and private ownership of the 
mineral lands west of the Missouri River. Contrasted with this is the 
mode of disposition of mineral bearing lauds east of the Missouri River, 
where the common law has been the one rule, aud where the surface 
tract has always carried with it all minerals vertically below it. 

The great coal, iron, copper, lead, aud zinc wealth east of the Rocky 
Mountains, have all passed with the surface title, and there cau be little 
doubt that if California had been contiguous to the eastern metallic 
regions, aud its mineral development progressed naturally with the ad- 
vance of home-making settlements, the power of common law precedent 
would have governed its whole mining history. But California wasoue 
of those extraordinary historic exceptions that defy precedent and create 
original modes of life and law. And since the developers of the great 
precious metal mining of the far West have for the most part swarmed 
out of the California hive, California ideas have not only been every- 
where dominant over the field of industry, but have stemmed the tide 
of Federal land policy and given us a statute-book with English com- 
mon law in force over half the land, and California common law ruling 
in the other. 

Your commissioners have examined typical mining localities in all 
the far western States and Territories, stucl.yiug the metalliferous deposits, 
the character and mode of developing the same, the titles on which 
ownership rests, and the lines of litigation which have governed the at- 



PUBLIC LANDS. XXXV 

tacks upon and defense of mineral property. It has been our main pur- 
pose in this branch of inquiry to determine how well the laws now upon 
the Federal statute-book convey into private ownership portions of 
mineral-bearing public lands, and how well the grantees of the govern- 
ment are enabled to hold, enjoy, and develop their properties. While 
in a large class of cases your commission finds that the law conveys 
definite rights and protects the grantees, in a far larger class it simply 
bequeaths a piece of paper and a legal contest. 

We find an extraordinary and characteristic difference between the 
mineral development east of the Missouri and that we.st. The first is 
almost absolutely exempt from litigatiou growing out of conditions of 
the government conveyance. The other is a history of the most fre- 
quent, vexatious, costly, and damaging litigation. 

While the total litigation concerning mineral titles in the great copper 
and iron region of Lake Superior is represented by a single suit, which 
turned on a conflict between two titles granted respectively by the State 
and the Government, the dockets of the far western courts are cumbered 
with an excessive number of suits, involving many million dollars of 
value. In that region the invester of capital too often buys only a law- 
suit, with a possible mine thrown in, and finds himself forced to choose 
between an expensive legal defense of his rights or robbery. That the 
mineral industry advances and prospers in the face of the statutes is 
proof only of the wealth of the country, and the buoyaut energy of the 
people. 

There are two general features in the existing statutes which have 
provoked and directed the main lines of legal contest, and they are, first, 
the recognition by the law of the local customs and regulations ; second, 
the attempted conveyance of a lode, ledge, or deposit of rock in place 
bearing mineral, as a thing separate from and independent of the surface 
tract of ground, with the permission to follow such lode or deposit on its 
dip, even when in the downward course it passes beyond the side lines 
of the surface claim. 

The law leaves all the conditions as to location, notice, record of 
location and area of claim withiu certain wide limits to local regula- 
tions. That is to say, the government proposes to convey a portion of 
its public land, aud bases the very origin and initiation of that convey- 
ance on the acts of an official wholly outside its jurisdiction. 

Title after title hangs on a local record which may be defective, muti- 
lated, stolen for blackmail, or destroyed to accomplish fraud, and of 
which the grantor, the government, has neither knowledge nor control. 
In the testimony taken by your commission it was repeatedly shown that 
two or three prospectors, camped in the wilderness, have organized a 
mining district, prescribed regulations, involving size of claims, mode of 
location, and nature of record, elected one of their number recorder, and 
that officer on the back of an envelope or on the ace of spades, grudg- 
ingly spared from his pack, can make, with the stump of a lead pencil, 
an entry that the government recognizes as the inception of a title 
which may convey millions of dollars. 

From such extreme cases, frequent as they have been, there is a wide 
range of organization to the duly-elected county recorder, but even that 
official, who represents the most favorable working of the system, is not 
responsible to the United States. He is neither bonded nor under oath. 
He may falsify or destroy his record; he may vitiate the title to mil- 
lions of dollars' worth of claims, and snap his lingers in the face of the 
government. All the local officers are made indirectly the agent of the 



XXXVI PUBLIC LANDS. 

government at tbe critical stage of a vast class of transactions without 
an iota of responsibility or a syllable of instruction from the principal. 

It is tree that the statute of 1872 does not make a record obligatory 
nor does it define its effect. Miners at their meetings might draw the 
provisions of their code without mention or requirement of record, but 
practically they exercise the privilege which the statute does not 
inhibit, and create a record. Having, as is universally the case, made 
the record a part of their code, the Federal law, having recognized and en- 
forced the code, is thereafter bound as to its conveyances by the record 
with all its preposterous seeds of harm. 

Such Federal law and such a state of affairs as the law plainly neces- 
sitates would, it might be supposed, cure itself. The burden of litiga- 
tion, the uncertainty of ownership, and the actual loss of property, 
should have long ago brought the mining people to a realization of the 
damage wrought by local records; but unfortunately the class of men 
who own our mines, fight the great costly lawsuits, and discover the 
absurdity of the law, are not the class who make the locations. The 
prospectoi's sole attempt is to follow the custom of other prospectors, 
make his location as other locations have been made since the golden 
days of early California, and sell out to a capitalist. 

If the capitalists of London aud New York, Chicago and San Fran- 
cisco, had anything to do with mine locations, they would clamor for a 
change. 

The continuance of this earlv practice, which has survived not only 
its original necessity and usefulness, but every semblance of value, is 
perhaps due more than all other causes to the excited, sudden, and 
transient character of the industry. The immediate returns, the move- 
ments of the stock-board to-day, the swift conversion of bonanza into 
bullion, are the points which absorb men. Permanent ownership and 
security of tenure are less considered. Like a great wheel of fortune, 
the daziing prizes bliud men to the sober legal conditions on which se- 
curity depends, and, as a result, uo branch of American enterprise has 
ever paid to litigation so great and so unnecessary a share of its gross 
returns. 

One of the ablest jurists who has administered the mining laws, 
Chief Justice W. H. Beatty, of Nevada, argues conclusively that the 
local records are of no practical value, and hence there is absolutely 
nothing whatever to weigh against the crying evils which their contin- 
uance entails. On page 398 of the book of testimony, he says: 

It thus appears, if the foregoing statements are correct, that upon three out of four 
points, subject to local regulation by the miners they make no use of their privilege, 
and that the regulations which they do make on the fourth point (namely, record), hav- 
ing no rtason to support them, are simply useless and vexatious. If this conclusion is 
well founded, my first proposition is established, that the whole subject of lode loca- 
tions is so simple that it not only may be, but actually is, fully regulated by act of 
Congress. That the right of local regulation ought to be taken away if it is of no 
practical value, is a plainer proposition than the first. The interest of the public 
would be subserved by cutting off a source of endless litigation, and the mining com- 
munities would be especially benefited by the enhanced value of mining property. 

The magnitude of the evil resulting from the uncertainty of mining titles will, per- 
haps, be appreciated, when I say that after a residence of seventeen years in the State 
of Nevada, with the best opportunities of observiug, I cannot at this momeut recall a 
single instance in which the owners of really valuable mining ground have escaped 
expensive litigation, except by paying a heavy blackmail. 

Besides the worse than useless permission to prescribe a record over 
which the government has no control, the law of 1872 leaves but two 
points which may be regulated by local organizations. It fixes the 
maximum dimension of the claim or thing granted, and it fixes the 



PUBLIC LANDS. XXXYII 

minimum requirements of survey, development and payment upon which 
the claim may pass to the grantee. 

Within these narrow limits is all the room left for local regulation. 
Miners may voluntarily limit their privilege of mineral pre-emption to 
an area less than the statute offers them, or they may require of them- 
selves conditions more onerous than the law demands. With his eyes 
open the American citizen is somewhat unlikely to do either. 

Your commission find that a large majority of the niiniug men con- 
sulted during the examination of the Western States and Territories 
clearly shared our conviction: first, that the local regulations are of no 
use; secondly, that they are a great positive harm; thirdly, that by 
Congressional euactment they should be promptly abolished as to all 
future locations. 

Accordingly, in the code of legislation submitted herewith, it is di- 
rectly provided that "all future occupation, location, or purchase of pub- 
lic mineral lands shall be governed by laws of Congress, to the exclusion 
of all lo<;al customs and regulations and State aud Territorial law" 
(section 172) ; and a mode of location is prescribed which requires all 
the acts necessary to pass title for public mineral lands from government 
to the purchaser, to be performed bv the locator, his assign or agent, 
and the duly bonded and qualified officers of the United States. 

The second great class of evils which our proposed law has sought 
to cure are those incident to the theory of the lode or ledge location. 
This outgrowth of the early Californian practice stands thus in the 
statute of 1872 : 

Sec. 2322. The locators of all mining locations heretofore made, or which shall here- 
after be made on auy mineral vein, lode, or ledge situated on the public domain, their 
heirs aud assigns, where no adverse claim exists, on the tenth day of May, eighteen 
hundred and seventy-two, so long as they comply with the laws of the United States, 
and with State, Territorial, and local regulations not. in conflict with the laws of the 
United States governing their possessory title, shall have the exclusive right of pos- 
session aud enjoyment of all the surface included within the lines of their locations, 
aud all veius, lodes, and ledges throughout their entire depth, the top or apex of 
which lies inside of such surface lines exteuded downward vertically, although such 
veins, lodes, and ledges may so far depart from a perpendicular in their course down- 
ward as to extend outside of the vertical side lines of such surface locations; but- 
their right of possession to such outside parts of such veins or ledges shall be confined 
to such portions thereof as lie between vertical planes drawn downward as above de- 
scribed through the end lines of their locations, so continued in their own direction 
that such planes will intersect sueh exterior parts of such veins or ledges. 

The grant therefore consists, first, of a definite surface tract, which, 
if properly marked, need never become a subject of dispute ; aud, sec- 
ondly, of all veins, lodes, and ledges without limit as to depth or de- 
parture beyond the side lines of the surface location, whose tops or 
apices lie inside the prism of earth bounded by vertical planes through 
the exterior boundaries. 

But the lodes which are to be followed are not definite or limitable, and 
in the book of testimony Judge Moses Hallett, of Colorado, in a clear 
exposition of the impossibility of describing or identifying a lode, which 
is the valuable thing granted, remarks : 

It is safe to say that the greater part of the legal complications for which mines are 
notorious over all other property, grows out of the practice of dealing with lodes as 
distinct aud severable from the earth in which they may be found. In condemnation 
of that policy it is only necessary to say that very many lodes have not that charac- 
ter, and of those that are pretty Veil defined it is often difficult and sometimes impos- 
sible to distinguish one from another. If we can return to the common-law principle 
which gives to the owner of the surface all that may be found within in his lines ex- 
tended downward vertically, we should avoid hereafter fully one-half the controversies 
that now embarrass the mining interests of tke country. 



XXXVIII PUBLIC LANDS, 

It has proved in practice and in law that a lode or ledge is an abso- 
lutely indefinite thing, and the act of following this formation whose 
nature and limits cannot be fixed beyond the locator's surface ground 
and under the surface ground of another owner, is the most frequent 
and vefxatious cause of litigation. 

The right of a locator to thus follow a lode into the ground of a second 
party works its minimum of mischief in the case of a well defined fis- 
sure vein of regular course and dip, the mineral material and walls of 
which clearly define it from the surrounding rock, and which, by its 
smooth unbroken continuity from a visible apex or outcrop upon the 
surface down to its lowermost workings, show plainly the unity of 
the whole formation. In such cases, if attacked at law, the locator 
would in the end be able to prove that the ore or vein which, at the 
bottom workings, lay under the surface claim of a second party, was in 
truth the lode or ledge whose apex lay in his own ground and was the 
one granted to him. 

With such a defined fissure vein, by spending many thousand dollars 
and provided his cloud of expert witnesses are not tripped up by clever 
cross-examination, and the judge is impartial, and the jury are not 
corruptly influenced against him, after many months and perhaps 
years, during which his enterprise has been handcuffed with injunctions 
and himself reduced to poverty, the owner might derive whatever hollow 
comfort he could from a victory w 7 hich left him ruined. 

From this somewhat favorable working of the law, your commission 
have gone on to the examination of another class of cases, in which the 
lode was not a simple fissure easily recognized at its apex, clearly 
defined from the inclosing rocks, and continuous without change or 
break, but a complex and indefinite body, without apex, so merged with 
the surrounding rock that its limits could not be fixed by science, and 
so extensive that no one surface claim could cover its outcrop, if it had 
one. 

Ore deposits may be horizontal sheets interstratified with sedimentary 
beds. They may occur as scattered impregnations of metallic minerals, 
disseminated without connection or system through broad zones of rock. 
'They may consist of a main central ore body, with small dependent 
bodies, connected with the parent mass by minute threads or seams of 
vein material, or ore, so that one discoverer locates on the apex of the 
main body, and another locates on the apex of a dependent body. Both 
trace their way downward into a single ore chamber, each having 
honestly followed ore all the way from his " apex." In such cases 
murder sometimes, litigation always, ensues. Again, some ore deposits 
are so extensive and broad on the surface that two or more parallel 
claims may be located side to side across the outcrop ; each has an apex, 
to each the government solemnl}- conveys his lode. On mining downward 
all find themselves in one lode, which rapidly narrows to the thickness 
of a sheet of paper, and contest ensues. This latter case might seem 
an inexpensive one to demonstrate, but on the " Comstock Lode " it cost 
three millions disbursed in litigation, and ten millions in underground 
development. The above cases, and others too numerous and compli- 
cated to adduce here, are the causes of innocent and unavoidable con- 
flict, where, owing to the character of the deposit, the law brings honest 
neighbors to the point where they discover that the government has 
seriously sold them both the exclusive right to the same thing, and the 
courts have forced one honest man to rob the other. 

But there is still another, and, unfortunately, a lamentably numerous 
line of cases where the government sells a lode to one man, and by its 



PUBLIC LANDS. XXXIX 

laws invites a general, a frequent, even a promiscuous blackmailing and 
robbery of its grantee. 

The existing law provides no administrative control over inspection 
of the alleged discovery. The mere location and record of an alleged 
lode give valid possessory title whether there really is a lode or not, for 
it is never questioned till the proceedings for patent, and even then the 
existence of a lode is determined by ex parte affidavits without official 
inspection. 

The line of adverse proceedings is this: One man locates an honest 
claim on the evident apex of a true lode. Fifty or a hundred tramps 
locate claims all around him and over him, burying his tract deep with 
thickly stratified possessory titles. Not one of the tramps has discov- 
ered a lode ; he has simply marked out a piece of ground and paid the 
recorder's fee, bestowing some name upon his imaginary discovery. The 
tramp's claim is obviously valueless for working, but he is in a position 
for a fee of five dollars to mine without the cost of muscle or plant. 
And where ? Not on his alleged lode, but in the already coined earn- 
ings of his neighbor, the honest discoverer. 

The blackmailer's method is simple and effective. Located over the dip 
of the honest discoverer he has only to say to him "It will cost you 
less to pay than fight." 

The robber's method is somewhat bolder and less certain of success, 
but his prize is greater. He sinks through his worthless claim and cuts 
the honest locator's veins where, in the language of the law, they " so far 
depart from a perpendicular in their coarse downward as to extend out- 
side the vertical side-lines" of the honest claims. The honest miners 
are then in the hands of justice, which means injunctions, trials, expert 
testimony, juries, and an abominable waste of money. 

Your commission, after a review of the lines of mining contests and a 
consideration of the complex nature of ore deposits, are unanimous in 
the conviction that any attempt on the part of the United States to 
convey such deposits as individual things beyond the vertical planes 
bounding the surface claim, must always end in a history of intolerable 
injustice. 

The result of our test of public opinion shows that, while there are 
regions whose simple fissure veins have not caused battles, and where, 
consequently, the people ask no change, the majority of experienced 
mining men desire a change from the lode location, with its disastrous 
sequel, back to the security and peace of the solid old common-law doc- 
trine. It is urged by opponents of this doctrine that this limitation 
will discourage deep mining. On that score we invite your attention to 
the following opinion. The Great Bouanza firm, after due reflection, 
submitted their views to your commission through their counsel, Judge 
B. C. Whitman, of Virginia City. His exposition of the operations of 
mining law is to be found on page 419 of the book of testimony. As a 
summary of his views on the subject of locations he remarks ou page 
421 : 

I think the square location {i. e., common law) would have no injurious effect upon 
deep ruining; ou the contrary, I think it would improve it, have a good effect, always 
provided that the United States survey and fix the monuments. A man could go in 
there then feeling that he owned that piece of ground, and 1 think every prospector 
would be willing to avail himself of that, and go to work on that supposition. The 
history, so far as I know, of every mine and mining company is continued litigation 
and expense by adverse locations. With a square location there could be no litiga- 
tion. Mining men would be more willing to invest in a square location than they 
would in what we call ledge locations. 

Subterranean rights are terminated by vertical plains carried down- 



XL PUBilC LANDS. 

ward through the end lines of the claim. But in a very large class of 
ore deposits, the valuable bonanza or pay chimney does not descend on 
the line of the dip, where it may be legally followed beyond the side 
lines, but rakes off at a sharp angle and the ore chimney passes out 
through the plane of the end lines, where the owner cannot follow it. 
In such cases, he stands precisely where the common law would place 
him. 

Again, if, as is often the case, the course, and hence the dip, are not 
discoverable on the surface where the location was made, a man lays 
out the length of his claim, as he supposes, on the strike of the lode, 
and draws his side lines where he supposes the valuable deposit will 
pass out of his surface, giving the right to him to follow it; but on 
mining down, perhaps for years, he finds that he was mistaken, and the 
whole vein, instead of dipping through his side line, dips through the 
end line, and the courts have held him to his unavoidable mistake. 

The existing law holds out the conditions for obtaining patents. Hav- 
ing permitted an inception of title dangerously vitiated by acts of local 
agents outside of the Federal jurisdiction, having permitted a lode loca- 
tion with its indefinite conditions, having permitted the robbers and 
blackmailers to acquire a cheap and secure fighting; title, the govern- 
ment then causes its unfortunate victim to set himself up as a target 
for attack by advertisement for patent, and when attacked calmly turns 
its back and permits him to be dragged into the local courts. 

In short, the present law might be fitly entitled "An act to cause the 
government to join, upon unknown terms, with an unknovrn second 
party, to convey to a third party an illusory title to an indefinite thing, 
and encourage the subsequent robbery thereof." 

Briefly, miners' laws and customs were initiated from necessity, and in 
the absence of legislation. They naturally dealt mainly with the min- 
eral to be extracted. The essence of their laws related to the lode. 
There was room enough for all, and the surface ground was not regarded 
as a definition of claim, but as an easement for the convenient working 
of the mineral beneath its surface. 

As the mineral domain became occupied, conflict of locations natur- 
ally ensued. The necessity for some precise definition of rights then 
followed. Congress, however, simply acquiesced in the loose customs 
which had sprung from the necessity of frontier explorations in the ab- 
sence of legislation. The definition of rights and the harmonizing of 
conflicting and obscure customs were remitted to the construction of the 
courts. Precisely as the railroad law of the country has, in the absence 
of legislation, grown out of the application by the courts of the law of 
common carriers by wagon and by boat, to the great lines of railroad 
traffic, so the courts have been compelled to apply the varying customs 
of innumerable local districts to the increasing complications and de- 
velopment of a national mining industry. It has resulted that the sur- 
face location has by construction become the controlling factor, and the 
miner often loses his lode when in its course it departs therefrom. 

The Helen Tarbut decision by the Supreme Court of tin- United 
States lays down the latest rule of construction. It is not an unfair 
criticism to say, that, by judicial construction, the old miners' theories 
are, in partial and fragmentary form, being reduced to a quasi applica- 
tion of the common-law rule. 

The commission has thought that the time has arrived when Congress 
should formulate the legislation to govern the changed conditions of an 
occupation which has passed from a frontier experiment into a national 
industry. 



PUBLIC LANDS. XLI 

If mining is to be continued as an experiment, or for speculative 
purposes alone, an adherence to the existing customs is desirable. If it 
is to be continued as a business, upon settled principles and with ex- 
pectation of legitimate returns, it should be governed by the same rules 
which the wisdom of centuries has formulated for the definition of all 
real property titles. 

The insecurity and hazard of the first system could be well followed 
by a continued relinquishment of Federal control over its own property, 
both in the inception of title and iu the adjustment of controversies. 

The certainty and security of the second system should be maintained 
by an assertion of the national jurisdiction over its own property in all 
stages of progress, until the title is vested in private ownership. 

In the new law submitted for the consideration of your honorable 
body, we have attempted to preserve all the valuable and practicable 
provisions of the present statute, and sought to cure all its flagrant 
wrongs. 

We have protected the prospector for an ample time to test his dis- 
covery, but we have fixed a limit to his possessory title; and thereafter, 
failure to tender purchase money shall work a forfeiture of the claim. 

We have in terms abolished all the local organizations and regulations, 
reserving to the United States full jurisdiction over all questions, fj 
location to patent. 

We have repealed the lode location, and substituted the common-law 
rule in its stead. 

We have, by a system of official survey and mineral inspection, pre- 
vented blackmail and robbery, and obviated those contests which ne- 
cessitate the intervention of the courts before patent. 

Providing thus for all questions of legal principle, there is one point, 
namely, the area of the common-law claim, on which we have made 
no recommendation. The limited time allowed for our taking of testi- 
mony as to this point has left us without a full expression of popular 
opinion, and we remit that question to your legislative judgment. 

PRIVATE LAND CLAIMS. 

So far as concerns all private land claims situate iu auy cessions from 
foreign governments outside of the boundaries covered by the treaty of 
Guadalupe Hidalgo and the subsequent Gadsden purchase, the com- 
mission has but one recommendation to submit. Numerous acts of 
Congress have, from 1806 to 1872, inclusive, granted indemnity scrip 
for confirmed private land claims, wholly or partly lost by non-location, 
or conflict with other claims, entries, or rights, or reduced by deficient 
surveys. Most of these acts were temporary or local, or both ; but an act 
of Congress, approved June 2, 185S (Stat, at Large, vol. IL pp. 294-5), 
made general provision for all claims confirmed by Congress before- 
thai date and then remaining unsatisfied. The ascertainment and sat- 
isfaction of the claims therein provided for was placed within the juris- 
diction of the executive officers of the United States ; but as the ques- 
tions involved are purely legal, the commission recommend a transfer 
of the jurisdiction to the Federal courts. The General Land Office 
would then be restricted to issuing such scrip only upon judicial con- 
firmation. This will not impair such rights as may have vested under 
past laws, but it will provide a safer and more satisfactory mode of as- 
certainment. This recommendation is formulated iu sections 22 L to 223, 
inclusive, in the accompanying bill. 

The commission has uo recommendations to make concerning private 



XLII PUBLIC LANDS. 

land claims in that part of the cessions from Mexico which fall within 
the State of California. The laws governing the confirmation and the 
segregation of these claims have been so far executed that very few 
claims are unsettled. So far as we are advised, none of these claims are 
pending in the courts upon the confirmation of title, and but thirty- 
seven have not been finally adjudicated upon the question of survey. 
Even as to that limited number, most of them. have been surveyed by 
the government, and the questions incidental thereto are rapidly ap- 
proaching a final settlement. Whatever views we might have desired to 
submit if the question was res Integra, there is no subject matter to 
which new legislation by Congress would be applicable. 

Sections 206 to 219, inclusive, of accompanying bill embody our recom- 
mendations at to the private land claims within the cessions from Mex- 
ico by treaty of Guadalupe Hidalgo and the Gadsden purchase, but 
exclusive of the State of California. These sections are literal transcripts 
of a bill introduced in the Senate duriug the present Congress by Hon. 
George F. Edmunds. 

In California, Congress, by the acts of March 3, 1851, June 14, 1SG0, 
July 1, 18G4, and July 23, 1866, provided machinery for the ascertain- 
ment and settlement of these claims which has resulted in their final 
confirmation or rejection, and in their subsequent segregation from the 
adjacent public lands. Questions of title were settled by the Federal 
courts, and authority to segregate claims judicially confirmed was vested 
in the proper executive officers of the United States. 

But in the remainder of the territory derived fiom Mexico a different 
mode from settling private laud claims was prescribed. The basis of 
such settlement is the eighth section of the act of July 22, 1854, which 
made it the duty of the surveyor-general to i; ascertain the origin, 
nature, character, and extent of all claims to lands under the laws, 
usages, and customs of Spain and Mexico, 1 ' and to report his conclusions 
to Congress for its direct action upon the question of confirmation or 
rejection. f J he law was singularly defective iu machinery for its admin- 
istration, and it imposed no limitation of time iu the presentation of 
claims, and no penalty for failure to present. Its operation has been a 
failure amounting to a denial of justice both to claimants and to the 
United States. After the lapse of nearly thirty years, more than one 
thousand claims have been filed with the surveyor-general of which less 
than one hundred and fifty have been reported to Congress, and of the 
number reported Congress has finally acted upon only seventy-one. 
Under the law, only copies of the original title papers were submitted to 
Congress, and it is not presumed that its committees are so constituted 
as to make safe judicial findings upon the validity of titles emanating 
from foreign governments, nor to measure the area of claims whose 
boundaries rest exclusively upon meager recital of natural objects in 
terms of very general description. As a consequence the committees of 
Congress have naturally been reluctant to act with insufficient data upon 
questions which involved the functions of the judge rather than of the 
legislator, and as these claims have heretofore pertained to a semi-foreign 
population in r comparatively unsettled portion of our Territories, busi- 
ness of more importance to the general welfare of the nation has been 
permitted to exclude these local matters from regular consideration. In 
the limited number of cases finally confirmed, Congress has been com- 
pelled to confirm by terms of general description, which have usually 
proved to include much greater areas of land than Congress would know- 
ingly have confirmed. The established rule of area under the Mexican 
colonization law was a maximum of eleven leagues to a claimant, being 



PUBLIC LANDS 



LV 



a little less than 50,000 acres; but as illustrations of the *tural result 
of confirmation without proper judicial investigation, one confirmation 
by Congress to two claimants has proved to embrace 1,000,0 JO acres and 
another about 1,800,000 acres. 

The time has arrived wheu the States and Territories, containing these 
treaty claims, are no longer on the frontier, and they have ceased to be 
populated exclusively by a foreign population. Lines of transcontinen- 
tal railroads are piercing them in every direction; the restless activity 
of American civilization is spreading towns and farms over the plains, 
and has exposed the hidden treasures of the mountains ; emigration is 
flowing in with magical rapidity, and industry and thrift are explor- 
ing every avenue for development and investment. But at the founda- 
tion of all permanent growth lies the security and certainty of land titles, 
and no discussion is required to prove that this is unattainable in com- 
munities, covered with claims to title of foreign derivation, and of un- 
ascertained boundaries. Even the government is ignorant of the line 
of demarkation between its public lands and these treaty claims, and 
uncertainty and insecurity taints the titles of its purchasers. The sec- 
tions proposed in onr law are intended to cure these evils, and to pro- 
vide a practical and speedy mode of settling these claims to title. The 
eminent source, from which the commission lias copied its recommenda- 
tion, inspires us with great confidence in the sufficiency of the remedy 
proposed. It is in substance, a judicial determination of the validity of 
the claims, with bar for non-preseutatiou within a prescribed period, and 
a compulsory segregation after confirmation. 

The experience of California has, however, demon trated that in the lapse 
of years, during which the United States have slept upon the fulfillment 
of these treaty obligations, many of these claims have passed into the 
hands of innocent purchasers for valuable consideration. Cases will 
doubtless occur, wheu the title of their grantees will be rejected, or the 
lands so purchased will be excluded from the final survey of the grant. 
It was deemed simple justice to give such grantees a preference right 
to purchase from the United States at $1.25 per acre, to the extent of 
their actual possession, according to the lines of their original purchase, 
and section 220 is recommended to that end. It is simply a literal enact- 
ment as general legislation of section 7. of the act of Congress of July 
23, 1866, and applicable only to California. It has operated with extreme 
beneficence in the State, and its principle should be equally applied to 
any other locality, wherein the same conditions exist. 

STATE SELECTIONS. 

The eighth section of the act of September 1, 1811, granted to named 
States and to " each new State, that shall be hereafter admitted into 
the Union," 500,000 acres of laud for purposes of internal improvement. 
All other grants of public laud to States were either restricted to States 
in the Union, or were contained in the enabling acts of the several 
States, or in special grants. Nevertheless, controversies have arisen 
before the executive department as to the right of new T States to 
grants, which were iu express terms restricted to States in the Union 
at date of the granting act; as, for illustration, the swamp grant. Such 
claims have been uniformly denied, but as the denial rests upon executive 
decision it was deemed wise to recommend a direct expression of the 
legislative intent. Section 221 is purposed to that end, and is in accord 
with the decisious of the executive department. It leaves to Congress 
the determination of the giants, to which States hereafter admitted 
shall be entitled. 



XLI1 . ! PUBLIC LANDS. 

^ 

Section 225^ re-enacts tbe rule of indemnity fixed by act of Congress 
approved May 20, 1826, and which has since prevailed without amend- 
ment. 

Section 226 is recommended to cover omissions and defects in exist- 
ing legislation governing the conveyance of title to the States in the 
matter of their several grants of land from the United States. The 
General Land Office has always denied its power to issue patents for 
land except when thereunto specifically authorized by acts of Congress. 
When named tracts were granted, like the sixteenth and thirty-sixth 
section grant for public schools, no evidence of title whatsoever was 
given to State. The granting act passed the title proprio vigore. 

When the grant was to be taken by selection, the practice grew 
up of preparing lists of such selections for the approval of the Sec- 
retary of the Interior. The originals thereof were retained ;iu the 
General Land Office, but without record ; and copies thereof were 
transmitted to the governors of the States interested. Such States re- 
ceived no other evidence of title from the government. The insuffi- 
ciency of this system became so apparent, and yet it had by lapse of 
time become so general, that by act of August 3, 1S54, Congress pre- 
scribed that such lists should be construed to convey the fee simple 
title, but with the limitation that " where lands embraced in such lists 
are not of the character embraced by such acts of Congress, and are 
not intended to be granted thereby, said lists, so far as these lauds 
are concerned, shall be perfectly null aud void, and no right, title, claim, 
or interest shall be conveyed thereby." This provision has always been 
embarrassing. It taints State titles with a supposed infirmity, which is 
aggravated by the lapse of time. Iso good reason is apparent why the 
executive should not be required to ascertain that the State is entitled 
to lauds before the fee should be conveyed from the United States; nor 
when the conveyance is made, why it should not be in the ordinary form 
by patent to be made of proper record. It would involve too much out- 
lay for clerical service to reform this as to past certifications; but the 
commission recommend that the evil be cured for the future. This 
anomalous form of listing without record has heretofore, in connection 
with other causes, led to careless adjustments of these grants, whereby 
it has resulted in one State at least that illegal certifications have been 
made and in excess of the grants. Many thousands of acres have 
thus been nominally conveyed to the State, for which there was no 
authority of law. The decisions of the Supreme Court in Moore vs. 
Bobbins denied the power of the executive to issue a second patent 
until the outstanding deed should have been judicially avoided. This 
decision has been construed by the Interior Department to apply to these 
State certifications. It results that whilst the holders of these State 
lists have no valid title, they are excluded from acquiring in some other 
form valid title from the United States, and the operation of the public- 
land laws are suspended as to these lands thus unlawfully listed. They 
are suspended like Mahomet's coffin, awaiting a suit to determine their 
patent in validity, which suit the United States can alone bring, but 
with great expense and delay. The second proviso to section 226 vests 
the General Land Office with clear power to adjust this matter, aud, in 
the absence of valid adverse rights, gives a preference right of purchase 
from the United States to innocent purchasers under color of title from 
such illegal certifications. The provision is confidently recommended 
with the approval of the General Land Office as a satisfactory and 
equitable solution of a vexed question, affecting large bodies of the 
public lands. 



PUBLIC LANDS. XLV 

BOUNTY LANDS. 

luasinuch as the laws governing this title relate exclusively to the 
past, and effect in future only the adjustment of rights heretofore ac- 
crued, the commission has not proposed any change in the existing 
law, as found in chapter 10 of title 32 of the Revised Statutes. 

MISCELLANEOUS PROVISIONS. 

The importance of the mining debris question is set forth in the testi- 
mony accompanying this report. It will appear therefrom that a serious 
and increasing conflict exists in California upon this subject between 
the miners and the agriculturists. It would also seem to be a question 
falling within the legitimate scope of Congressional action. The United 
States still own forty per cent, of the lands in that State, a large por- 
tion of which contain minerals. Facilities for running off their tailings 
are indispensable to the successful working of these mines ; and the 
government could scarcely expect to sell the same to purchasers, and yet 
deny the necessary conveniences for their operation. But it is claimed 
that such uurestraiued debris facilities destroys the agricultural lands 
on the lower portions of the streams, and that by the shoaling of rivers 
and bays navigation is being destroyed and commerce restricted. It 
should be satisfactorily determined whether these allegations of fact 
"are true ; and, if so, whether there is an appropriate and just remedy 
This commission has enjoyed neither the requisite time nor facilities for 
an intelligent solution of this important question '; and it is not clear 
that it falls within our jurisdiction. But it is so closely allied to the 
future disposition of the public domain in mineral localities, and it is of 
such growing importance, that we feel warranted, in recommending the 
creation of a properly-organized commission, clothed w r ith authority to 
ascertain the facts, and to propose to Congress an adequate remedy for 
any evils they may find to exist, which shall settle this vexed question 
with even-handed justice to all parties interested. 

Sections 260 to 262, inclusive, are literal enactments of the existing 
law. 

Section 263 is a condensation of sections 2369, 2371, and 2372 of the 
Revised Statutes ; and section 261 is a substitute for Revised Statutes 
2370. It adds to existing law the authority to reissue patents, " when 
necessary or proper, to correct errors in description, or in names of par- 
ties, or in other material particulars." It seems singular that no such 
authority has heretofore existed, and its absence has been a serious em- 
barrassment to the Land Department and an annoyance to patentees. 

Section 265 prescribes a method of fixing, under our proposed system 
of classification, the price for sale of released reservation lands. 

Sections 266 to 268, inclusive, cover the matter of repaying purchase 
money where the United States refuse to convey to the purchaser. We 
have put the matter upon the broad proposition that when the govern- 
ment refuses to give the citizen an equivalent for his purchase money, it 
should be refunded to him, and the parties to the canceled contract be 
put back exactly into their original position. The appropriation for this 
purpose has for more than fifty years been treated as a permanent ap- 
propriation, but a ruling of the Secretary of the Treasury now throws 
these claims into a class requiring specific appropriations from Congress, 
which will lapse at the expiration of two years. No good reason is ap- 
parent why the goverment should seek to retain money never belonging 
to it, nor to embarrass its prompt return with narrow construction, nor 



XLVI PUBLIC LANDS. 

the necessity for special legislation in each case. The occurrence of 
such cases could not be anticipated by executive officers, and hence 
they could not be embraced in aunual estimates. We have, therefore, 
sought to put this matter where it has stood for more than fifty years, 
by declaring it to be a permanent specific appropriation. 

Section 269 provides equitable relief for settlers to whom the United 
States has sold lands at the double minimum price on the assumption 
of their beiug within the lateral limits of railroad grants. Ic subsequently 
proves that said grant is forfeited by reason of non-construction ; or by 
change of location, or by more accurate adjustment of the withdrawal, 
it transpires that the lands thus sold, were not within said limits, and 
became properly subject to sale at the single minimum price. In such 
cases, the United States have failed to give the settler the promised 
equivalent for his excess payment, and in some form he is entitled to 
equitable satisfaction. Various modes of adjustment have heretofore 
been proposed to Congress, the most favored being by way of indemnity 
scrip, or lire right to locate, without occupation, an equivalent area of 
single minimum lands. The commission believe that the scrip policy 
is vicious both in theory and practice; and we have preferred to recom- 
mend the ordinary business mode of refunding to the settler the excess 
payments erroneously exacted from him. The excess money was paid 
by the settler under an assumed state of facts which prove not to exist. 
The government simply returns it to him, as having been exacted with- 
out consideration. 

Section 270 is the present law. 

Section 271 provides a mode for absorbing outstanding land scrip. 
The commission respectfully calls the attention of Congress to the dan- 
gerous and unwise practice which has heretofore prevailed of authorizing 
the issue of scrip locatable upon the public domain. These are usually 
in satisfaction of equitable land claims against the United States, which 
the government is unwilling or unable to satisfy in place. If the claim 
is just, it should be satisfied with a money equivalent; and the govern- 
ment should not resort to a compromise payment in land scrip, which 
does not do justice to the claimant, and which complicates other public 
land titles with the incubus of unknown and speculative floats. We are, 
however, confronted with the fact that, more or less of this scrip is out- 
standing, and has passed under the faith of existing legislation into the 
hands of iunocent purchasers for a valuable consideration. Our recom- 
mendation is to devote the arable lands exclusively to homesteads, and 
abolish the pre-emption law and the cash commutation privilege. But 
under existing laws this outstanding scrip is mainly usable in paying 
for pre emptions and commuted homesteads. To extend simple justice 
to its purchasers, section 271 makes it locatable within two years from 
passage of this act upon lands of similar class to which it was hereto- 
fore applicable. 

Sections 272 and 278 are intended to meet a grc.it defect in present 
legislation, and to destroy the ability of trespassers to practically suspend 
by their unlawful occupation the operation of the public land laws. 
They are in furtherance of the policy of the proposed settlement laws, 
which require that persons, claiming title or control of public lands, 
shall perfect by some prescribed act th ir possess >ry or other claims of 
title; and that their refusal or omission so to <h> shall not look up the 
public domain against other lawful claimants. The decisions of the Su- 
preme Court in Atherton vs. Fowler (6 Octo, 573), and in Hosmer rs. 
Wallace (7 Otto, 575), have pointed out the infirmity of the present set- 
tlement laws; and these sections are designed to provide an adequate 



PUBLIC LANDS. XLVII 

remedy against the continued absorption of the public lands by the 
mere fact of illegal occupation. 

Section 274 and the first part of section 275 are re-enactments of the 
present law. The latter part of 275 reserves, in all lands hereafter 
sold or granted by the United States, an easement to the public for 
highways. The method of declaring the easement is left to local discre- 
tion and legislation ; but the reservation is deemed wise, as it will tend 
to prevent the locking up of water fronts on inland streams, and ob- 
struction to parties owning back lands from getting out timber. A 
similar reservation is found in the Canada laud laws, except that it is 
defined by a prescribed width on the section lines. But the topographi- 
cal features of the country may make a highway on any given line im- 
practicable, and we have, therefore, simply reserved the easement and 
left its application to local necessity. 

Section 276 is intended to bring special rights of way to railroads, 
and which have not as yet been utilized, within the provisions of the 
general act of March 3, 1875 Congress has heretofore made some spe- 
cial grants of this character, without requiring any definition of the 
right of way, either by the filing of maps with the Interior Department, 
or by location upon the earth's surface. Iu a general way, they are 
claimed to be easements during the life of the statute, locatable at 
pleasure, and to the exclnsiou of every one throughout the general sec- 
tion of country which the road pretends to occupy with its local charter. 
The section suggested will put these roads in the general requirement 
to give precision by location and to give notice to the public by the 
filing of their maps with the Secretary of Interior. 

Section 277 provides for an exchange and consolidation, under proper 
conditions, of certain lands held by corporations under Congressional 
grants. The provision is recommended as being of great advantage in 
aiding irrigation projects, and in facilitating actual settlement under 
the homestead, colony, and other settlement laws. 

All of which is respectfully submitted. 

^J. A. WILLIAMSON. 
CLARENCE KING*- 
*-A. T. BRITTON. 
^ THOMAS DONALDSON. 
J. W. POWELL, w 



Department of the Interior, 

Washington, February 25, 1880. 
Sir: I have the honor to submit herewith, for the consideration of 
Congress, copy of letter addressed to me, on the 21st instant, by Maj. 
J. W. Powell, a member of the Public Land Commission appointed un- 
der the sundry civil appropriation act of 3d March last (20 Stat., 394), 
in which he suggests certain amendments to the preliminary report of 
said commission, submitted by me to Congress this day, thereby quali- 
fying, in some respects, his approval thereof. 

C. SCHUEZ, 

Secretary. 
The Hon. The Speaker 

Of the House of Representatives. 



Department op the Interior, 

Public Land Commission, 
Washington, D. C. February 21, 1880. 
Sir : I desire to qualify my approval of the report of the Public Land 
Commission, and accompanying draft of bill, as follows : 

It is recommended that section 151 of chapter IX be amended by 
striking out the words a by the person conducting the same" * * * 
" or to," and adding a new clause to the section. As thus amended it 
will read : 

Section 151. The right to the use of water on any tract of irrigable land shall depend 
on bona Jide prior appropriation ; and such right shall not exceed the amount of water 
actually appropriated and necessarily used for the purpose of irrigation and reclama- 
tion ; and all surplus water over and above such actual appropriation and use, to- 
gether with the water of all lakes, rivers, and other sources of water .supply upon the 
public lands and not navigable, shall remain and be held free for the appropriation 
and use of the public for irrigation, mining, and manufacturing purposes, subject to 
existing rights. 

The right of way for the construction on the public lands of cauals and other 
hydraulic works necessary for irrigation is hereby established ; but whenever any 
person in the construction of such canals or hydraulic works injures or damages an- 
other settler on the public domain, the party committing such injury or damage shall 
be liable to the party iujured for such injury or damage : and, in the absence of nec- 
essary legislation by Congress, the legislature of any State or Territory may enact 
laws and prescribe rules relating to the easements necessary for irrigation. 

It is also recommended that section 193 of chapter XII be amemded 
by striking out the words "agricultural" * * * u or other," and in- 
serting after the word " mining" the conjunction " or." As thus 
amended the section will read : 

Section 193. Whenever, by priority of possession, rights to the use of water for 
mining or manufacturing purposes have vested and accrued, and the same are recog- 
nized and acknowledged by the local customs, laws, and the decisions of courts, the 
possessors and owners of such vested rights shall be maintained and protected in the 
same, and the right of way for the construction of ditches and canals for the purposes 
herein specified is acknowledged and confirmed; but whenever any person in the con- 
struction of any ditch or canal injures or damages the possession of any settler on the 
public domain the party committing such injury or damage shall be liable to the party 
injured for such injury or damage. 

These amendments are designed to prevent the severance of water 
property from land property, and to provide that the right to use the 
water for irrigation purposes shall inhere in the land and pass with the 
title to the land on condition of continuous use, and to prevent a state 
of affairs under which all of the agriculture of the vast area where irri- 
gation is necessary would be subject and tributary to a few stock com- 
panies owning the water. 

It is further recommended that a new section be added to chapter X r 
following immediately upon section 154, as follows : 



PUBLIC LANDS. 



Sectiox— . In the lands patented under the provisions of this chapter all subter- 
ranean mining property, and rights for mining purposes are hereby ^^fi^m the 
surface property and rights for pasturage purposes and whenever the surface pi op- 
Irtv and rights for pasturage purposes to any tract of land have passed from the gov- 
ernment under the provisions of this act, subterranean property and rights for mimng 
purposes therein may be acquired under the provisions of the twelfth chapter of this 
LTancl in absence of necessary legislation by Congress ^^*g!^$J& 
State or Territory may provide rules for discovering and working such nimes involv- 
in* easements, drainage, and other means necessary to their complete development. 

In every patent issued for pasturage laud under the provisions of this 
chapter there shall be inserted the following clause : 

Except and excluding from these presents all subterranean property rights in any 
mine of gold, silver, cinnabar, lead, tin, copper, coal, iron, or other valuable mineral 
deposit fand the property conveyed in'this patent shall be servient to the easements 
necessary for discovering and working mines therein, and m the absence of legisla- 
tion by Congress the kfcal legislature" of the Sta,e or Territory in which the above- 
described land is sitnate may provide rules for OTV^.^^P^g^^j 
and for the working of mines therein involving easements, drainage, and other means 
necessary to discovery and development. 

In every patent for mineral land issued under the provisions of this 
section there shall be inserted the following clause : 

Except and excluding from these presents all surface property rights; provided 
that there shall be dominant in the property conveyed in this patent the easements 
on the surface property necessary for discovering and working .Wgj^a**^ 
the absence of legislation by Congress the local legislature of the State o ire itoiy 
in which the above-described land is situate may provide rules for exploring and pro- 
specting for mines thereon, and for working of mines therein, involving easements, 
drainage, and other means necessary to discovery and development. 

About one-half of all the lands in the western portion of the United 
States bearing gold, silver, and other ores of like geological occurrence, 
are covered with forests, and hence are both timber and mineral lands. 
Provision has been made in the tentative bill for the sale of the timber, 
the fee of the land to remain in the government, and such lands are 
held free to exploration and acquirement of title as mineral lands. I he 
other one-half of these mineral lands are also pasturage lands. It is 
believed that the enactment of the pasturage law as recommended by 
the co mmission, without the amendment above indicated, would result m 
passing a large amount of mineral lands into the hands oi people en- 
gaged in pasturage industries, and thus the mining industry ot the coun- 
try would be greatly retarded. The pasturage homestead is necessarily 
very large, and as it is given to the settler he should not consider it a 
hardship if the mines contained therein are severed from his ownership. 
It is believed that at least ninety-nine one-hundredths of all the coal 
lands of the western portion of the United States are situate in lands 
belonging to the class designated in the tentative bill as pasturage 
lands It has been recommended that the coal lands be sold at ten 
dollars per acre; but in the pasturage homestead act titles can be ac- 
quired to four sections of pasturage land at a nominal price, and such 
lands might and would be denned properly as coal lands ; that is, they 
would contain beds of coal of commercial value. Tbe pasturage home- 
stead act, without the amendment proposed, would defeat the measure 
designed to secure the sale of the coal lands at ten dollars per acre. 

I would respectfully request that these suggestions tor amendments 
be transmitted to Congress. 

I am, with great respect, your obedient servant, 

fj. W. I OVY Kjuu. 

The Hon. the Secretary of tile Interior, 

Washington, D. 6. 

o 



AN ACT to provide for the survey and disposal of the public lands of the "dinted 'Skates, 

Be it enacted by the Senate and House of Representatives of the United 
States of America in Congress assembled, viz : 

CHAPTER I. 

THE GENERAL LAND OFFICE. 

Section 1. The Secretary of the Interior shall, in his discretion, ex- 
ercise supervisory powers over the administration of all laws concerning 
the public lands, including mines, and over the survey and patenting of 
private land claims. 

Sec. 2. There shall be in the Department of the Interior a Commis- 
sioner of the General Land Office, who shall be appointed by the Presi- 
dent, by and with the advice and donsent of the Senate, and shall be 
entitled to a salary of six thousand dollars per year. 

Sec. 3. The Commissioner of the General Land Office shall perform 
or direct subject to the supervision of the Secretary of the Interior, ail 
executive acts appertaining to the surveying and sale of the public lands 
of the United States, or in anywise respecting such public lands, and 
also such as relate to private claims of land, and the issuing of patents 
for all grants of land under the authority of the Government ; and in 
such routine duties as may be assigned to his subordinates by the Com- 
missioner their orders shall be considered as emanating from him, and 
shall have full force and effect as such. 

Sec. 4. All returns relative to the public lands, and all official infor- 
mation or reports from officers in the public land service, shall be made to 
the Commissioner of the General Land Office, or to such officer as lie may 
direct, and all the duties of said officers shall be performed under his 
authority and direction ; and he shall have power to audit and settle all 
public accounts relative to the public lands; and upon the settlement 
of any such account, he shall certify the balance, and transmit the ac- 
count, with the vouchers and certificate, to the First Comptroller of the 
Treasury, for his examination and decision thereon. 

Sec. 5. The Commissioner of the General Land Office shall, when re- 
quired by the President, or either House of Congress, make a plat of 
any land surveyed under the authority of the United States, and give 
such information respecting the public lands, and concerning the busi- 
ness of his office as shall be directed. 

Sec. 6. The Commissioner of the General Land Office shall retain the 
charge of the seal heretofore adopted for the office, which may continue 
to be used, and of the records, books, papers and other property apper- 
taining to the office. 

Sec. 7. The Commissioner of the General Land Office is authorized to 
decide upon principles of equity and justice, as recognized in courts of 
equity, and in accordance with regulations to be settled by the Secretary 
of the Interior, the Attorney General, and the Commissioner conjointly, 
consistently with such principles, all cases of suspended entries of or 
locations upon public lands, which have arisen in the General Land Of- 
fice since the twenty-sixth day of June, 1856, as well as all cases of a 
similar kind which may hereafter occur, embracing as well locations 
H. Ex. 46 l'v xux 



L PUBLIC LANDS. 

with warrants or scrip as ordinary entries or sales, and including home- 
stead entries and pre-emption locations, and cases where the law has been 
substantially complied with, and the error or informality arose from ig- 
norance, accident, or mistake, which is satisfactorily explained: and the 
said Commissioner shall adjudge upon which of such cases patents 
shall issue. 

Sec. 8. Every such adjudication shall be approved by the Secretary 
of the Interior and the Attorney General acting as a board, and shall 
operate ouly to divest the United States of the title to lands embraced 
thereby, without prejudice to the rights of conflicting claimants. 

Sec. 9. The Commissioner is directed to report to Congress, at the 
first session after any such adjudications have been made, a list of the 
same, under the classes prescribed by law, with a statement of the prin- 
ciples upon which each case was determined. 

Sec. 10. The Commissioner shall arrange his decisions into two 
classes; the first class to embrace all such cases of equity as may be 
finally confirmed by the board, and the second class to embrace all such 
cases as the board reject and decide to be invalid. 

Sec. 11. For all lands covered by claims which are placed in the first 
class, patents shall issue to the claimants; and all lands embraced by 
claims placed in the second class, shall, ipso facto, revert to and become 
part of the public domain, to be thereafter subject to disposition as 
other lands of similar classification. 

Sec. 12. Where patents have been already issued on entries or loca- 
tions, which are confirmed by the officers who are constituted the Board 
of Adjudication, the Commissioner of the General Land Oflice, upon the 
canceling of the outstanding patent, is authorized to issue a new patent, 
on such confirmation, to the person who made the entry or location, his 
heirs or assigns. 

Sec. 13. There shall be appointed by the President, by and with the 
advice and consent of the Senate, an Assistant Commissioner of the 
General Land Office, at a salary of three thousand dollars a year, who 
shall be charged with such duties in the execution of the public land 
laws as may be prescribed by the Commissioner of the General Land 
Office, or by law, and who shall act as Commissioner of the General 
Land Office in the absence of that officer, or during any vacancy in that 
office. 

Sec. 14. There shall be in the General Laud Office an officer called 
the Recorder of the General Land Office, who shall be appointed by the 
President, by and with the advice and consent of the Senate, and shall 
be entitled to a salary of twenty-four hundred dollars a year ; and in 
the absence of said Recorder, or duriug any temporary vacaucy in said 
office 1 , the duties thereof shall be performed by a chief of division in the 
General Land Office, to be designated by the Commissioner thereof. 

Sec. 15. All patents issuing from the General Laud Office shall be issued 
in the name of the United States, and be sigued by the President and 
countersigned by the Recorder of the General Laud Office, and shall 
be recorded in that office in books to bo kept for the purpose. 

Sec. 16. The Presideut is authorized to designate from time to time 
one or more clerks of the General Land Office, whose duty it shall be, 
under the direction of the President, to sigu in his name and for him the 
patents for lauds sold or granted under the authority of the United 
States. 

Sec. 17. It shall be the duty of the Recorder of the General Land 
Office, in pursuance of instructions from the Commissioner, to certify and 
affix the seal of the office to all patents for public lauds, or private 



PUBLIC LANDS. LI 

laud claims, and to attend to the correct engrossing, recording, and trans- 
mission of such patents. He shall prepare alphabetical indexes of the 
names of patentees and of persons entitled to patents, and he shall pre- 
pare and certify such copies and exemplifications of matters on file or 
recorded in the General Land Office as the Commissioner may from time 
to time direct, or as may be authorized by law. 

Sec. 18. "Whenever any person applies to the General Land Office for 
eopies of records, books or papers filed and remaining therein, in any- 
wise affecting titles or claims of title under the public land laws or treaty 
stipulations, it shall be the duty of the Commissioner of the General 
Land Office to furnish such copies, authenticated under the hand of the 
Recorder and the seal of the office for the person so applying, upon the 
payment by such person at the rate of fifteen cents per hundred words, 
and of two dollars for copies of township plats or diagrams, and the 
actual cost of the preparation of copies of plats larger than township 
plats, with an additional sum of one dollar for the Recorder's certificate 
of verification with the General Land Office seal ; and one of the em- 
ployees of the office shall be designated by the Commissioner as the 
Receiving Clerk, and the amounts so received shall, under the direction 
of the Commissioner, be paid into the Treasury ; but fees shall not be 
demanded for such authenticated copies as may be required by the offi- 
cers of any branch of the Government, nor for such unverified copies 
as the Commissioner in his discretion may deem proper to furnish. 
Copies of any documents, records, books or papers in the General Land 
Office, certified by the Recorder under the seal of the General Land 
Office, or, when the Recorder is absent, or his office is temporarily vacant, 
fey the officer acting as Recorder for the time, shall be evidence equally 
with the originals. 

Sec. 19. There shall be in the General Land Office a principal clerk 
©f surveys, who shall have scientific and practical knowledge of survey- 
ing, and receive a salary of three thousand dollars a year. He shall 
assist the Commissioner of the General Land Office in the surveying 
duties herein devolved upon that officer, and so far as he may be thereto 
authorized by said Commissioner his orders and acts shall be deemed the 
orders of the Commissioner. 

Sec. 20. That from and after 

all other officers, 
clerks, and employees in the General Land Office shall be as follows : 

A chief clerk, who shall receive a salary of two thousand five hundred 
dollars a year. 

A solicitor, who shall receive a salary of two thousand seven hun- 
dred dollars a year. 

Nine chiefs of divisions, who shall each receive a salary of two thousand 
four hundred dollars a year. 

One chief draughtsman, who shall receive a salary of two thousand 
two hundred dollars a year. 

Ten assistant chiefs of division, who shall each receive a salary of two 
thousand dollars a year. 

Fifteen clerks, at eighteen hundred dollars a year each. 

Thirty-five clerks, at sixteen hundred dollars a year each. 

Forty clerks, at fourteen hundred dollars a year each. 

Fifty clerks, at twelve hundred dollars a year each. 

Ten draughtsmen, at twelve hundred dollars a year each. 

Twenty clerks, at a salary of one thousand dollars a year each. 

Ten copyists, at a salary each of nine hundred dollars a year. 



LII PUBLIC LANDS. 

Two packers, at a salary each of eight hundred and forty dollars a 
year. 

A chief messenger, at a salary of eight hundred and forty dollars a 
year. 

Nine assistant messengers, at a salary each of seven hundred and 
twenty dollars a year. 

Twelve laborers, at a salary each of seven hundred and twenty dollars 
a year. 

And said other officers, clerks, and employees shall be appointed by 
the Secretary of the Interior, upon the nomination of the Commissioner 
of the General Land Office. 

Sec. 21. That all offices heretofore authorized in the General Land 
Office, but not specifically provided for by this law, shall be, and the 
same are hereby, abolished. 

Sec. 22. The officers, clerks, and employees of the General Land Office 
are prohibited from directly or indirectly purchasing, or becoming inter- 
ested in the purchase of, any of the public land ; and any person who 
violates this section shall forthwith be removed from his office. 



CHAPTER II. 

APPEALS. 



Sec. 23. The right of appeal to the Secretary of the Interior from the 
decisions, orders, or acts of his subordinate officers shall be exercised 
by claimants only in the events and upon the terms and conditions 
hereinafter specified. 

Sec. 24. The right of appeal to the Commissioner of the General 
Land Office from the decisions, orders, or acts of his subordinate officers 
shall be exercised by claimants only in the events and upon the terms 
and conditions hereinafter specified. 

Sec. 25. Any decision, order, or official act of the Commissioner of 
the General Land Office shall be subject to appeal to the Secretary of 
the Interior by any party having a dona fide interest in the subject- 
matter affected thereby: Provided, That notice of intention to so appeal 
be filed in the General Land Office at Washington within ninety days 
after date of such decision, order, or official act : And provided further. 
That said appeal be thereafter perfected and prosecuted according to 
regulations to be prescribed by the Secretary of the Interior, whose 
duty it is hereby made to prescribe and publish such regulations. Upon 
failure to file such notice of intention within said ninety days, no right 
of appeal shall thereafter exist; and in the event of such seasonable 
filing, upon failure to perfect and prosecute said appeal according to 
the regulations previously prescribed and published by the Secretary of 
the Interior, said appeal shall be dismissed. 

Sec. 26. The Commissioner of the General Land Office shall each 
week print copies of such laws, decisions, regulations, and circulars as 
may be necessary for the information of the public ; and he shall trans- 
mit copies of the same each week to the several district land officers 
and the surveyors general, who shall be required to post the same con- 
spicuously in their several offices for the convenient use and examina- 
tion of the public. Said publication is hereby declared to be competent 
evidence of the several decisions, regulations, and circulars in all the 
courts and public offices of the United States without further proof 



PUBLIC LANDS. LIII 

or authentication thereof ; and copies thereof shall be furnished by the 
Commissioner to any person applying therefor upon payment of the 
costs with twenty-five per centum added. 

Sec. 27. Any decision, order, or official act of any officer subordinate 
to the Commissioner of the General Land Office shall be subject to 
appeal to the said Commissioner by any party having a bona fiie inter- 
est in the subject-matter affected thereby : Provided, That notice of in- 
tention to so appeal be filed with the said subordinate officer within 
thirty days after notice of such decision, order, or official act : And pro- 
vided further, That said appeal be thereafter perfected and prosecuted 
according to regulations to be prescribed by the Commissioner of the 
General Land Office, whose duty it is hereby made to prescribe and 
publish such regulations. Upon failure to file such notice of intention 
within said thirty days after notice, no right of appeal shall thereafter 
exist ; and upon failure, after such seasonable filing, to comply with 
the regulations previously prescribed and published by the Secretary 
of the Interior, the appeal shall be dismissed. 

Sec. 28. When a party entitled to take an appeal, as hereinbefore 
provided, is an infant, insane person, or imprisoned, such appeal may 
be taken within the time heretofore prescribed, exclusive of the term 
of such disability. 



CHAPTER III. 

SURVEYS AND SURVEYORS. 

Sec. 29. The Commissioner of the General Land Office shall direct 
and superintend the making of all surveys connected with the public 
land system and all matters relating thereto. 

He is hereby authorized to prescribe the use, by Surveyors General 
and their deputies, of such instruments as he may deem best to secure 
economy and accuracy in the execution of the surveys, and to adopt 
such methods of monumentation and marking of lines on the ground as 
he may deem best to secure the permanency of such monuments and 
marks and their most ready and certain identification. 

He shall cause the surveys to be made in such manner as to determine 
under what class the several tracts surveyed shall be placed, and the 
plats to be so constructed, and the field notes to be so prepared, as to 
exhibit the character of the lands and the facts necessary for their 
proper classification. 

Sec. 30. It shall be the duty of the Commissioner of the General 
Land Office to prepare manuals of instruction for the survey of public 
lands, private land claims, and mineral locations, and he shall have au- 
thority to revise the same from time to time as the service may require. 

Sec. 31. It shall be the duty of the Commissioner of the General Land 
Office to cause to be prepared annually, and to keep on file, a map of 
surveys for each land district, exhibiting the extent of the surveys in such 
district at the close of each year 5 and he shall furnish to the Register 
of each land district, annually, a copy of the map of surveys of his dis- 
trict; and he shall furnish to each surveyor general, annually, copies of 
the maps of all the land districts in the Surveyor GeneraFs surveying dis- 
trict. All copies of the original maps of surveys shall be made by au- 
tomatic methods under the direction of the Commissioner of the General 
Land Office, and shall be furnished to any person applying for the same 



LIV PUBLIC LANDS. 

at the cost of paper and printing with twenty-five per centum added 
thereto ; and all moneys received for such copies of maps shall be covered 
into the Treasury of the United States. 

Sec. 32. The States of California, Colorado, Florida, Louisiana, Min- 
nesota, Nevada, Nebraska and Oregon, and the Territories of Dakota, 
Idaho, Montana, Washington, Wyoming, Utah, Arizona and New Mexico 
shall respectively be surveying districts, and the President shall, by and 
with the advice and consent of the Senate, appoint one Surveyor General 
for each of said districts. 

Sec. 33. The salary of each Surveyor General shall be three thousand 
dollars per year, and every Surveyor General hereafter appointed shall 
be a man having scientific and practical knowledge of surveying. 

Sec. 34. There shall be but one office of Surveyor General in each 
Surveyor General's district ; and such office shall be located as the Pres- 
ident, in view of the public convenience, may from time to time direct. 

Sec. 35. Every Surveyor General, while in the discharge of the duties 
of his office, shall reside in the district for which he is appointed. 

Sec. 36. The Commissioner of the General Land Office shall take all 
the necessary measures for the completion of the surveys in the several 
surveying districts for which Surveyors-General have been, or may be, 
appointed, at the earliest periods compatible with the purposes con- 
templated by law ; and whenever the surveys and records of any such 
district are completed, the Surveyor-General thereof shall be required 
to deliver over to the Secretary of State of the State or Territory includ- 
ing such surveys, or to such other officer as may be authorized to re- 
ceive them, all the field-notes, maps, records, and other papers apper- 
taining to laud titles within the same ; and the office of Surveyor-Gen- 
eral in every such district shall thereafter cease and be discontinued : 
Provided, They shall in no case be turned over to the authorities of any 
State or Territory until such State or Territory has provided by law for 
the reception and safe-keeping of the same as public records, and for 
the allowance of free access to the same by the authorities of the United 
States. 

Sec. 37. In all cases where, as provided in the preceding section, the 
field-notes, maps, records, and other papers appertaining to land titles 
in any State or Territory, are turned over to the authorities of such 
State or Territory, the same authority, powers, and duties in relation to 
the survey, resurvey, or subdivision of the lands therein, and all mat- 
ters and things connected therewith, as previously exercised by the 
Surveyor- General whose district included such State or Territory, shall 
be vested in aud devolved upon the Commissioner of the General Laud 
Office. 

Sec. 38. Under the authority and direction of the Commissioner of 
the General Laud Office, any deputy surveyor or other agent of the 
United States shall have free access to any such field-notes, maps, rec- 
ords, and other papers, for the purpose of taking extracts therefrom, or 
making copies thereof, without charge of any kind. 

Sec. 39. Every Surveyor-General shall engage a sufficient number of 
skillful surveyors as his deputies, to whom he is authorized to adminis- 
ter the necessary oaths upon their appointments, and who shall under 
his direction survey the public lands and private land claims. He shall 
have authority to frame regulations for their direction, not inconsistent 
with law or the instructions of the General Land Office, and to remove 
them for negligence or misconduct iu office. 

Second. He shall cause to be surveyed, measured, and marked, with- 
out delay, all base and meridian lines through such points and perpet- 



PUBLIC LANDS. LV 

uated by sucli monuments, and such other correction parallels and 
meridians and other lines as may be prescribed by law or by instructions 
from the Commissioner of the General Land Office, in respect to the pub- 
lic lands within his surveying district, to which the Indian title has been 
or may be hereafter extinguished. 

Third. Be shall cause to be surveyed all private land claims within 
his district so far as may be necessary to complete the survey of the 
public lands. 

Fourth. He shall transmit to the registers of the respective land-offi- 
ces within his district general and particular plats of all lands surveyed 
by him for each laud district • and he shall forward copies of such plats 
to the Commissioner of the General Land Office. 

Fifth. He shall, so far as is compatible with the desk duties of his 
office, occasionally inspect the surveying operations while in progress in 
the field, sufficiently to satisfy himself of the fidelity of the execution of 
the work according to law and instructions ■ and the actual and neces- 
sary expenses incurred by him, while so engaged, shall be allowed; but 
when a Surveyor General is engaged in such special service he shall receive 
only his necessary expenses in addition to his regular salary. The Com- 
missioner of the General Land Office is also authorized to send out spe- 
cial inspectors to examine the character of the work being performed in 
the field ; and the salaries and expenses of such officers shall be paid from 
the regular appropriation for public surveys. 

Sixth. He shall in the taking of testimony authorized by law, or un- 
der the direction of the Commissioner of the General Land Office, exer- 
cise the powers and duties as to issuing subpoenas or perpetuating tes- 
timony as are granted to Eegisters in sections 68, 69, and 70 of this act. 

Sec. 40. The official seals heretofore authorized to be provided for the 
offices of the Surveyors General of Oregon, California, and Louisiana 
shall continue to be used-; and official seals shall in like manner be fur- 
nished for the offices of all Surveyors General, and any copy of or ex- 
tract from the plats, field-notes, records, or other papers on file in those 
offices, respectively, when authenticated by the seal and signature of 
the proper Surveyor General, shall be evidence in all cases in which the 
original would be evidence. 

Sec. 41. Any copy of a plat of survey, or transcript from the records 
of the office of any Surveyor-General duly certified by him, shall be ad- 
mitted as evidence in all the courts of the United States and of the Terri- 
tories thereof. 

Sec. 42. An accurate account shall be kept by each Surveyor- General 
of the cost of surveying and platting private land claims, to be reported 
to the General Land Office, with the map of such claim ; and patents 
shall not issue for any such private claim until the cost of survey and 
platting has been paid into the Treasury by the claimant. 

Sec. 43. When any person or persons who may be entitled to acquire 
lands under any law of the United States desires a survey of unsurveyed 
public lands not reserved by proper authority or otherwise appropriated, 
such person or persons may file an application therefor in writing with 
the proper Surveyor-General, who may, under such instructions as may 
be given him by the Commissioner of the General Land Office, and in 
accordance with law, survey such lands and make return thereof, as of 
other surveys of public lands, to the General and proper local land of- 
fices* Provided, however, That such persons shall deposit in a proper 
United States depositary, to the credit of the United States, a sum suf- 
ficient to pay for such survey, together with all the expenses incident 
thereto. 



LVI PUBLIC LANDS. 

Sec. 44. The deposit of money in a proper United States depositary, 
under the provisions of the preceding section, shall be deemed an ap- 
propriation of the sum so deposited for the objects contemplated by that 
section ; and the Secretary of the Treasury is authorized to cause the 
sums so deposited to be placed to the credit of the appropriations for the 
surveying service ; but any excesses in such sums over and above the 
actual cost of the surveys, comprising all expenses incident thereto, for 
which they were severally deposited, shall be repaid to the depositors 
respectively. 

Sec. 45. Where persons make deposits in accordance with the provi- 
sions of section forty-three, the amount so deposited may be used in pay- 
ment for their lands situated in the township, the surveying of which is 
paid for out of such deposits ; or the certificates issued for such deposits 
maybe assigned by indorsement and be received in payment for any public 
lands of the United States which the assignee may be entitled to enter 
under the law. Provided, That when such certificates of deposit are in 
excess of the price of the land so entered the Commissioner of the Gen- 
eral Land Office shall give to the purchasers excess certificates, which 
may be located on the same terms as the original certificates of deposit. 

Sec. 46. There shall be allowed for the offices of the several Survey- 
ors-General, for the employment of deputy surveyors, for monuments to 
mark surveys, for instruments, clerk-hire, office rent, fuel, books, station- 
ery, and for other incidental expenses, such sums as may be appropriated 
for the purpose, by Congress, from year to year. 

Sec. 47. Every deputy surveyor shall, before entering on the duties 
of his office, execute and deliver to the Secretary of the Interior, a bond 
with good and sufficient security for the penal sum of five thousand dol- 
lars, conditioned for the faithful disbursement, according to law, of all 
public money placed in his hands, and for the faithful performance of 
the duties of his office. 

Sec. 48. The Surveyors-General, in addition to the oath now author- 
ized by law to be administered to deputies on their appointment to 
office, shall require each deputy, on the return of his surveys, to take 
and subscribe an oath that those surveys have been faithfully and cor- 
rectly executed according to law and the instructions of the Surveyor 
General. 

Sec. 49. The deputy surveyors may each be allowed as compensation 
for their services, when employed either by the day, month, or year, 
such salary, not exceeding the rate of three thousand dollars per annum, 
as may be fixed by the Commissioner of the General Land Office and 
approved by the Secretary of the Interior. 

Sec. 50. Whenever any portion of the public surveys are so required 
to be made as to render it expedient to let a contract for the survey 
thereof instead of having it done by salaried deputies, it shall be lawful 
for the Commissioner of the General Laud Office to make such fair and 
reasonable contract as in his judgment may be necessary to insure the 
accurate and faithful execution of the work. 

Sec. 51. The lines bounding townships on the east and west sides 
shall, in all cases, be true meridians, and those on the north and south 
sides shall be chords intersecting circles of latitude passing through the 
angles of the townships, so as to form townships six miles square as 
nearly as the convergence or divergence of meridians will permit; ex- 
cept where the line of an Indian reservation, or of tracts of laud hereto- 
fore surveyed or patented, or the course of navigable rivers, may render 
this impracticable; and in that case tbis rule must be departed from no 
further than such particular circumstances require. 



PUBLIC LANDS. LVII 

Second. The meridian passing north and south from the initial point 
of a system of townships shall be designated as the principal meridian, 
and the parallel passing east and west from the said initial point shall 
be designated as the principal base line, A tier of townships succes- 
sively contiguous from north to south 'shall be designated as a range. 
Ranges shall be numbered east and west respectively from the principal 
meridian, and townships shall be numbered in the range north and south 
respectively from the principal base line. 

Third. The corners of the townships must be marked with progressive 
numbers from the beginning; each distance of a mile between such cor- 
ners must be also distinctly marked with marks different from those of 
the corners. 

Fourth. The township shall be subdivided into sections, containing, as 
nearly as may be, six hundred and forty acres each, by running through 
the same, each way, parallel lines at the end of every mile ; and by mark- 
ing a corner on each of such lines, at the end of every mile. The sections 
shall be numbered respectively, beginning with the number one in the 
northeast section and proceeding west and east alternately through the 
townships with progressive numbers till the thirty-six be completed. 

Fifth. Where the exterior lines of the townships which may be 
subdivided into sections, half sections, or other smaller subdivisions 
exceed, or do not extend, six miles, the excess or deficiency shall be spec- 
ially noted, and added to or deducted from the western and northern 
ranges of sections, half sections, or other smaller-subdivisions in such 
township, according as the error may be in running the lines from east 
10 west, or from south to north ; the sections, half sections, or other 
smaller subdivisions, bounded on the northern and western lines of such 
townships, shall be sold as containing only the quantity expressed in 
the returns and plats respectively, and all others as containing the com- 
plete legal quantity. 

Sixth. The field-books shall be returned to the Surveyor-General, 
who shall cause therefrom a description of the whole lands surveyed to 
be made out and transmitted to the officers who may superintend the 
sales or disposal. He shall also cause a fair plat to be made of the town- 
ships and fractional parts of townships contained in such lands, describ- 
ing the sub-divisions thereof, and the marks of the corners. This plat 
shall be recorded in books to be kept for that purpose ; and a copy there- 
of shall be kept open at the Surveyor-General's office for public informa- 
tion, and other copies shall be sent to the places of the sale, or disposal, 
and to the General Land Office. 

Sec. 52. The boundaries and contents of the several sections, half 
sections, and quarter sections of the public lauds shall be ascertained in 
conformity with the following principles : 

First. All the corners marked in the surveys, returned by the Sur- 
veyor-General shall be established as the proper corners of sections, 
or subdivisions of sections, which they were intended to designate; and 
the corners of half and quarter sections, not marked on the surveys, 
shall be placed as nearly as possible equidistant from two corners which 
stand on the same line. 

Second. The boundary lines actually run and marked in the surveys 
returned by the Surveyor-General shall be established as the proper 
boundary lines of the sections, or subdivisions, for which they were in- 
tended, and the length of such lines, as returned, shall be held and con- 
sidered as the true length thereof. And the boundary lines which have 
not been actually run and marked shall be ascertained by running straight 
lines from the established corners to the opposite corresponding corners ) 



LVIII PUBLIC LANDS. 

but in those portions of the fractional townships where no such opposite 
corresponding corners have been or can be fixed, the boundary lines 
shall be ascertained by running from the established corners due north 
and south or east and west lines, as the case may be, to the water-course, 
Indian boundary line, or either external boundary of such fractiona 
township. 

Third. Each section, or subdivision of a section, the contents whereof 
have been returned by the Surveyor-General, shall be held and consid- 
ered as containing the exact quantity expressed in such return ; and the 
half sections and quarter sections, the contents whereof shall not have 
been thus returned, shall be held and considered as containing the one- 
lialf or the one-fourth part, respectively, • of the returned contents of 
the section of which they may make part. 

Sec. 53. In every case of the division of a quarter section, the line for 
the division thereof shall run north and south, and the corners and con- 
tents of half quarter sections, which may thereafter be sold, shall be 
ascertained in the manner and on the principles directed and prescribed 
by the section preceding ; and fractional sections containing one hun- 
dred and sixty acres and upwards shall, in like manner, as nearly as 
practicable, be subdivided into half quarter sections, under such rules 
and regulations as may be prescribed by the Commissioner of the Gen- 
eral Land Office, and in every case of a division of a half quarter sec- 
tion, the line for the division thereof shall run east aud west ; and the 
corners and contents of quarter quarter sections, which may thereafter 
be sold, shall be ascertained, as nearly as may be, in the manner and on 
the principles directed and prescribed by the section preceding ; and 
fractional sections containing fewer or more than one hundred and sixty 
acres shall, in like manner, as nearly as may be practicable, be subdivided 
into quarter quarter sections, under such rules and regulations as may 
be prescribed by the Commissioner of the General Land Office. 

Sec. 54. Whenever, in the opinion of the Commissioner of the General 
Land Office, a departure from the ordinary method of surveying land on 
any river, lake, bayou, or water-course would promote the public inter- 
est, he may direct the Surveyor-General in whose district such land is 
situated, and where the change is intended to be made, to cause the 
lands thus situated to be surveyed in tracts of two acres in width, front- 
ing on any river, bayou, lake, or water-course, and running back to the 
depth of forty acres ; which tracts of land so surveyed shall be offered 
for sale entire instead of in half quarter sections, and in the usual man- 
ner and on the same terms in all respects as the other public lands of 
the United States. 

Sec. 55. Whenever, in the opinion of the Commissioner of the Gen- 
eral Land Office, a departure from the rectangular mode of surveying 
and subdividing the public lands would promote the public interests, he 
may direct such change to be made in the mode of surveying and desig- 
nating such lands as he deems proper, with reference to the existence of 
mountains, mineral deposits, and the advantages to be derived from tim- 
ber and water privileges ; but such lands shall not be surveyed into less 
than one hundred and sixty acres, nor subdivided into less than forty 
acres. 

Sec. 50. Every person who in any manner, by threats or force, inter- 
rupts, hinders, or prevents the surveying ot the public lauds, or of any 
private land claim which has been or may be confirmed by the United 
States, by the persons authorized to survey the same in conformity with 
law, shall be lined not less than fifty dollars nor more than three thou- 
sand dollars, and be imprisoned not less than one nor more than three 
years. 



PUBLIC LANDS. LIX 

Sec. 57. Whenever the President is satisfied that forcible opposition 
has been offered, or is likely to be offered, to any surveyor or deputy 
surveyor in the discharge of his duties in surveying the public lands, it 
may be lawful for him to order the marshal of the State or district, by 
himself or deputy, to attend such surveyor or deputy surveyor wioh 
sufficient force to protect such officer in the execution of his duty, and 
to remove force should any be offered. 

Sec. 58. The public surveys shall extend over all mineral lands ; and 
all subdividing of surveyed lands into lots less than one hundred and 
sixty acres may be done by county and local surveyors at the expense 
of claimants. 

Sec. 59. Whenever monuments of surveys upon public lands are ob- 
literated, upon due proof of that fact to the Surveyor General, the set- 
tlers upon the land may have the monuments re-established under the 
provisions contained in sections 43, 44, and 45 of this act. 

Sec. 60. All State and Territorial boundary lines hereafter to be sur- 
veyed, and corrections of those heretofore surveyed, shall be surveyed 
under the direction of the Superintendent of the Coast and Geodetic 
Survey. And the said Superintendent shall also cause the meridians 
and base lines and township corners of the public land surveys to be 
tied into his coast and geodetic surveys as the same are extended over 
surveyed public lands; and he shall furnish, upon the application of the 
Commissioner of the General Land Office, the true location of such lines 
and corners, so as to give the requisite information for their restoration 
if destroyed or removed. 

Sec. 61. That if any person or persons shall knowingly or wilfully 
remove, obliterate, or destroy any stake, stone, or other object placed 
or marked as a monument to indicate a corner of the surveys made by or 
under the authority of the United States, such person or persons shall, on 
conviction thereof, be punished by a fine not exceeding one thousand 
dollars, and shall moreover be liable to imprisonment not exceeding 
one year, or both, at the discretion of the court ; and the place occupied 
by any such monument shall be forever reserved for the purpose of 
perpetuating such monument. 

Sec. 62. Lands classified in this act as pasturage and irrigable may 
be surveyed into townships, omitting the subdivisioual lines, and may 
be described and patented as such, and this provision may be applied 
to lauds notoriously swamp and overflowed. 



CHAPTER IV. 

LAND OFFICES. 

Registers. 

Sec. 63. There shall be appointed by the President, by and with the 
advice and consent of the Senate, one officer for each land district 
established by law, who shall be styled Register of the Land Office. 

Sec. 64. Every such Register shall reside at the place where the land 
office in the district for which he is appointed is directed by law to be 
kept, and shall have a seal, to be provided by the Commissioner of the 
General Land Office. 

Sec. 65. Every such Register shall be allowed an annual salary of 
three thousand dollars; and it shall be unlawful for such officer to re- 



LX PUBLIC LANDS. 

ceive for his own use or benefit, directly or indirectly, any other com- 
pensation, whether by way of fees, rewards or otherwise; and on sat- 
isfactory proof that such officer has charged or received fees or other 
rewards not authorized by law, he shall be forthwith removed from 
office. 

Sec. 66. The compensation of such Registers shall commence from 
the time they respectively enter upon the discharge of their duties, and 
they shall be removable at pleasure. 

Sec. 67. Said Registers shall perform all the duties connected with 
the sale of the public lands heretofore enjoined by law upon Registers 
of land offices; and shall, before entering upon the duties of their 
offices, give bonds each in the penal sum of ten thousand dollars, with 
approved security, for the faithful discharge of their trusts ; and in ad- 
dition thereto they shall also perform all the duties, and under similar con- 
ditions and bonds, which have heretofore been imposed upon or required 
by law from Receivers of public moneys ; and the separate office of Re- 
ceiver of public moneys is hereby abolished. 

Sec. 68. Each Register of the land office is authorized, and it shall 
be his duty, to administer any oath required by law, or the instructions 
of the General Land Office, in connection with the entry or purchase of 
any tract of the public lands ; but he shall not charge or receive, di- 
rectly or indirectly, any compensation for administering such oath. The 
findings of the Register upon a question of fact shall in the absence of 
appeal be final. 

Sec. 69. Each register of the land office shall have power to issue 
subpoenas, to require before him the attendance of witnesses upon any 
proceeding authorized by law, or the instructions of the General Land 
Office, in connection with the disposal of publiclands; but he shall not have 
power to commit for contempt. Said subpoena shall run throughout the 
land district for which the officer issuing the same is the Register, and 
it may be served by any disinterested party duly authorized by the 
Register to make such service. Conclusive proof of service shall be by 
the affidavit of the party so authorized to serve and actually making 
such service. Witnesses subpoenaed pursuant to this section shall be 
allowed the same compensation as is allowed witnesses in the courts of 
the United States, to be paid in advance by the party applying for the 
subpoena. 

Sec. 70. Whenever any person so subpoenaed before such Register of 
the Land Office fails to appear in obedience thereto, or whenever any 
person examined before said officer refuses or declines to answer, or to 
swear, or to sign his examination when taken, or to be otherwise guilty of 
contempt, the Register of the Land Office shall forthwith transmit his cer- 
tificate of contumacy, setting forth all the facts, and submitting the orig- 
inal subpoena and proof of service thereof to the judge of the nearest 
United States court, who shall have power to order the person so acting 
to pay the costs thereby occasioned and to punish him for contempt in 
like manner as if such subpoena had issued originally from said court, if 
such person be compellable by law to appear and answer such questions 
or to sign such examination ; or such Register of the Land Office may in 
like manner certify the matter to the nearest State or Territorial court 
upon which the legislature of said State or Territory may have conferred 
appropriate jurisdiction in such cases. 

Sec. 71. If any person applies to any Register of the Land Office to 
enter any land whatever, and the said officer knowingly and falsely in- 
forms the person so applying that the same has already been entered, 
and refuses to permit the person so applying to enter the same, such 



PUBLIC LANDS. LXI 

officer shall be liable therefor to the person so applying for five dollars 
for each acre of land which the person so applying offered to enter, to 
be recovered by action of debt, in any court of record having jurisdiction 
of the amount. 

Sec. 72. All fees now by law exacted at the district land office in con- 
nection with the disposition of the public lands, shall be, and the same 
are hereby, abolished. 

Sec. 73. Each Eegister of the Land Office shall charge and receive for 
making transcripts for individuals or furnishing any other record infor- 
mation respecting public lands or land titles in his land district such fees 
as are properly authorized by the tariff existing in the local courts of 
his district; and all moneys received from such fees shall be accounted 
for as other public moneys ; and the deposit thereof in a proper deposi- 
tary of the United States shall be deemed an addition to the appropria- 
tion for incidental expenses of district land offices. 

Sec. 74. The Commissioner of the General Land Office is authorized 
to make a reasonable allowance to each district land office for office 
rent, clerical services, and other necessary expenses, including the cost 
of depositing public moneys ; said allowance to be paid out of the ap- 
propriation for incidental expenses for district land offices j but no 
such allowance shall be operative unless first sanctioned by the Commis- 
sioner of the General Land Office. 

Sec. 75. All proofs, affidavits, or oaths authorized bylaw or the regu- 
lations of the General Land Office, in connection with the disposition of 
the public lands, may be sworn to either before the Eegister of the Land 
Office or before the judge or clerk of any court of record, or before 
any officer authorized to administer oaths whose official capacity shall 
be properly verified ; and such proofs, affidavits, or oaths, when so made 
before any such judge, clerk, or other officer, and duly subscribed, shall 
have the same force and effect as if made before the district land officer, 
and the same shall be transmitted by such judge or clerk to the proper 
district land office : Provided, however, That in contested cases proofs 
may be taken by deposition, with notice to the opposite party and oppor- 
tunity for cross-examination, under regulations to be prescribed by the 
Commissioner of the General Land Office. If any witness making such 
proofs, affidavits, oaths or depositions, before such Eegister, judge, 
clerk, or other officer, swears falsely to any material matter contained 
therein, the said false swearing being willful and corrupt, he shall be 
deemed guilty of perjury, and shall be liable to the same pains and 
penalties as are prescribed by section 5392 of the Eevised Statutes of 
the United States. 

Sec. 76. Where a plat of the survey of any township or fractional 
township of public lands shall have been filed pursuant to law in any 
district land office, the Eegister shall forthwith cause a notice of such 
filing to be published for thirty days in a newspaper published in the 
place nearest to such township; and the lands embraced in such town- 
ship shall not be subject to application, entry, or location until the ex- 
piration of such publication. 

Sec. 77. Every person making application at any of the land offices 
of the United States, for the purchase at private sale of a tract of land, 
shall produce to the Eegister a memorandum in writing, describing the 
tract, which he shall enter by the proper number of the section, half sec- 
tion, quarter section, half-quarter section, quarter-quarter section, frac- 
tion, or lot, as the case may be, and of the township and range, subscrib- 
ing his name thereto, which memorandum the Eegister shall file and 
preserve in his office. 



LXII PUBLIC LANDS. 

Sec. 78. Where two or more persons apply for the purchase, at private 
sale, of the same tract, at the same time, the Kegister shall determine 
the preference by forthwith offering the tract to the highest bidder: 
Provided, That the same shall not be sold for less than the price fixed 
by law for lands in the same classification. 

Sec. 79. Where two or more persons have become purchasers of a 
section, or fractional section, the Begister of the Land Office of the dis- 
trict in which the lands lie shall, on application of the parties and a 
surrender of the original certificate, issue separate certificates, of the 
same date with the original, to each of the purchasers, or their assignees, 
in conformity with the division agreed on by them ; but in no case shall 
the portions so purchased be divided by other than north or south and 
east or west lines, nor shall any certificate issue for less than eighty 
acres. 

Sec. 80. Whenever the quantity of public land remaining unsold in 
any land district is reduced to a number of acres less than one hundred 
thousand, it shall be the duty of the Commissioner of the General Land 
Office to discontinue the land office of such district; and if any land in 
any such district remains unsold at the time of the discontinuance of a 
land office, the same shall be subject to sale at some one of the existing 
land offices most convenient to the district in which the land office has 
been discontinued, of which the Commissioner of the General Land 
Office shall give notice. 

Sec. 81. The Secretary of the Interior may continue any land district 
in which is situated the seat of government of any one of the States, 
and may continue the land office in such district, notwithstanding the 
quantity of land unsold in such district may not amount to one hundred 
thousand acres, when, in his opinion, such continuance is required by 
public convenience, or in order to close the land system in such State. 

Sec. 82. Whenever the cost of collecting the revenue from the sales 
of the public lands in any land district is as much as one-third of the 
whole amount of revenue collected in such district, it may be lawful for 
the President, if, in his opinion, not incompatible with the public inter- 
ests, to discontinue the land office in such district, and to annex the 
same to some other adjoining land district; but when the cost of collec- 
tion in any land district exceeds the amount of revenue collected, such 
land district shall be discontinued and be annexed to some other ad- 
joining land district. 

Sec. 83. The President is authorized to change the location of the 
land offices in the several districts established by law, and to relocate 
the same from time to time at such point in the district as he deems 
expedient. 

Sec. 84. Upon the recommendation of the Commissioner of the Gen- 
eral Land Office, approved by the Secretary of the Interior, the Presi- 
dent may order the discontinuance of any land office and the transfer 
of any of its business and archives to any other land office within the 
same State or Territory. 

Sec. 85. The President is authorized to change and re-establish the 
boundaries of land districts whenev er, in his opinion, the public inter- 
ests will be subserved thereby, without authority to increase the num- 
ber of land offices or laud districts. 

Sec. 86. In case of the division of existing land districts by the crea- 
tion of new ones, or by a change of boundaries by the President, all 
business in such original districts shall be entertained and transacted 
without prejudice or change, until the offices in the new districts are duly 



PUBLIC LANDS. LXIII 

opened by public announcement under the direction of the Secretary of 
the Interior. All sales or disposals of the public lands regularly made 
at any land office, after such lands have been made part of another dis- 
trict by any act of Congress, or by any act of the President, are con- 
firmed, provided the same are free from conflict with prior valid rights. 
Sec. 87. Until changed as hereinbefore provided, the number and 
boundaries of the several land districts, and the location of the respect- 
ive land offices, shall continue as now established. 

CHAPTER V. 

CLASSIFICATION OF LANDS. 

Sec. 88. For all purposes of surveying and sale the public lands of 
the United States shall be classified as arable, irrigable, pasturage, 
timber, and mineral; and said lands, thus classified, shall be disposed 
of only under laws specifically applicable thereto. 

Sec. 89. All non-mineral lauds which will produce agricultural crops 
without irrigation, and which are not chiefly valuable for timber for 
commercial purposes, shall be classified as arable lands; and such lands 
shall be subject to entry and disposal only under the town-site, timber- 
culture, and homestead laws, except in the States of Arkansas, Louis- 
iana, Mississippi, Alabama, and Florida. 

Sec. 90. All lands, excepting mineral lands, and excepting lands 
chiefly valuable for timber of commercial value, which will not, without 
irrigation, produce some agricultural crop, except grass, for the recla- 
mation of which sufficient water can be obtained, shall be classified as 
irrigable lands. 

Sec. 91. All lands, excepting mineral lands, and excepting lands 
chiefly valuable for timber of commercial value, which will not produce 
crops without irrigation, and which are chiefly valuable for pasturage 
purposes, shall be classified as pasturage lands" 

Sec. 92. All lands, excepting mineral, which are chiefly valuable for 
timber of commercial value, for sawed or hewed timber, shall be classi- 
fied as timber lands. 

Sec. 93. All lands which contain veins or lodes of quartz or other 
rock in place bearing gold, silver, cinnabar, lead, tin, copper, coal, iron, 
or other valuable deposit (and which are rendered thereby more valuable 
for mineral than for agricultural purposes), shall be classified as mineral 
lands; and the same shall be subject to entry and sale only under the 
provisions of the mineral laws. 

Sec. 94. In ascertaining the character of lands according to the classi- 
fication hereinbefore prescribed, the plats and field-notes of the offi- 
cial surveys shall operate as prima facie evidence of such character; 
but such showing shall be subject to correction upon proof of error sat- 
isfactory to the Commissioner of the General Land Office, and accord- 
ing to regulations to be prescribed by him : Provided, however, That if 
unsurveyed lands are settled upon, or sought to be entered under au- 
thority of law, or if lands heretofore surveyed have not been classified 
according to the provisions of this chapter, the Commissioner of the 
General Land Office shall prescribe the mode and character of proof to 
establish to his satisfaction the character of such lands: And provided 
further, That the issue of a patent by the United States shall, in the 
absence of fraud, be conclusive as to the character of the land covered 
thereby. 



LXIV PUBLIC LANDS. 

CHAPTEE VI. 

HOMESTEAD ENTRIES. 

Sec. 95. All the public lands of the United States, excepting as 
hereinafter provided, shall be subject to homestead entry under the con- 
ditions, restrictions and stipulations provided by law. 

Sec. 96. The following classes of lands, unless otherwise specially 
provided for by law, shall not be subject to homestead entry ; to wit : 

1st. Lands to which the Indian title has not beeu extinguished. 

2d. Lands included in any reservation by any treaty, law or procla- 
mation of the President, for any purpose. 

3d. Lands included within the limits of any incorporated town: Pro- 
vided, That if said incorporation exceeds the m aximum area which 
may be entered as a town site under existing laws, the restriction upon 
the right to homestead shall apply only to so much of said excess as 
shall be actually settled upon, inhabited, improved, and used for busi- 
ness and municipal improvements. 

4th. Lands actually settled and occupied for purposes of trade and 
business, and not for agriculture. 

5th. Lands classified as mineral or timber. 

Sec. 97. Every person, male or female, who is the head of a family, or 
who has arrived at the age of twenty-one years and is a citizen of the 
United States, or who has filed his or her declaration of intention to 
become such, as required by the naturalization laws, shall be entitled to 
enter one quarter section, or a less quantity of unappropriated public 
lands subject to homestead, to be located in a body, in conformity to 
the legal subdivisions of the public lands ; and every person owning or 
residing on land may, under the provisions of this section, enter other 
lands lying contiguous to his or her land, which shall not, with the land 
so already owned and occupied, exceed in the aggregate one hundred 
and sixty acres. 

Sec. 98. The person applying for the benefit of the preceding sec 
tion shall file his or her application in writing with the Register of the 
proper land office, together with his or her affidavit that he or she is 
the head of a family, or is twenty-one years or more of age, or has per- 
formed service in "the Army or Navy of the United States, and that 
such application is made for his or her exclusive use and benefit, and 
that the entry is made for the purpose of actual settlement and cultiva- 
tion, and not, either directly or indirectly, for the use or benefit of any 
other person ; and upon filing such affidavit with the Eegister he or she 
shall thereupon be permitted to enter the amount of land specified, upon 
the payment of eighteen dollars to the United States. 

Sec. 99. No certificate, however, shall be given, or patent therefor, 
until the expiration of three years from the date of such application ; 
and if at the expiration of such time, or at any other time within two 
years thereafter, the person making such entry ; or if he be dead, his 
widow; or in case of her death, his heirs or devisee; or in case of a 
widow, or a single woman making such entry, her heirs or devisee, in 
case of her death, proves by two credible witnesses that he, she, or 
they have resided upon or cultivated the same for the term of three 
years immediately succeeding the time of filing the affidavit, and makes 
affidavit that no part of such land has been alienated, except for church, 
cemetery, or school purposes, or for the right of way of railroads or 
highways across such homestead, and that he, she, or they will bear true 
allegiance to the Government of the United States; then in such case he, 



PUBLIC LANDS. LXV 

she, or they, if at that time citizens of the United States, shall be entitled 
to a patent, as in other cases provided by law. 

Sec. 100. In case of marriage by a woman who may have initiated 
title under this act, and who was at the time of said marriage bona fide 
prosecuting the same, she shall be permitted to consummate her title in 
her own right upon performance of the acts and for the term required 
by this chapter. 

Sec. 101. In case of the death of both father and mother, leaving ah 
infant child or children under twenty-one years of age, the right and fee 
shall inure to the benefit of such infant child or children ; and the execu- 
tor, administrator, or guardian may, at any time within two years after 
the death of the surviving parent, and in accordance with the laws of 
the State in which such children, for the time being, have their domi- 
cile, sell the land for the benefit of such infants, but for no other pur- 
pose ; and the purchaser shall acquire the absolute title by the pur- 
chase, and be entitled to a patent from the United States. 

Sec. 102. In case of any person desirous of availing himself of the 
benefits of this chapter, but who, by reason of actual service in the mil- 
itary or naval service of the United States, is unable to do the personal 
preliminary acts at the district land office which the preceding sections 
require, and whose family, or some member thereof, or some duly au- 
thorized representative, is residing on the land which he desires to 
enter, and upon which a bona-fide improvement and settlement have 
been made, such person may make the affidavit required by law before 
the officer commanding in the branch of the service in which the party 
is engaged, which affidavit shall be as binding in law, and with like 
penalties, as if taken before the Begister ; and upon such affidavit being 
filed with the Begister by the wife or other representative of the party, 
the same shall become effective from the date of such filing. 

Sec. 103. The Begister of the Land Office shall note all applications 
under the provisions of this chapter on the tract-books and plats of his 
office, and keep a register of all such entries, and make return thereof 
to the General Land Office, together with the proof upon which they 
have been founded. 

Sec. 104. No lands acquired under the provisions of this chapter shall 
in any event become liable to the satisfaction of any debt contracted 
prior to the issuing of the patent therefor. 

Sec. 105. If at any time after the inception of any homestead claim and 
prior to issue of patent thereon, it is proved, after due notice to the set- 
tler, to the satisfaction of the Begister of the proper land office that the 
said homestead applicant has actually changed his residence or aban- 
doned the land for more than six consecutive months, or that the said 
claim for any cause was originally illegal or invalid, then and in that 
event the land embraced in said homestead claim shall revert to the 
government, and any intervening claim or right to the same tract shall 
be deemed to have taken effect, as if the canceled homestead claim had 
never been made. In the event that no appeal shall be filed from the 
decision of the Begister against such homstead claimant, said Begister 
shall forthwith cancel said claim from his records, and shall receive any 
other claims to the same tracts in the order in which they may have 
been, or shall thereafter be, presented. 

Sec. 106. No person shall be permitted to acquire title to more than 
one quarter-section under the provisions of this chapter, but no person 
shall be deemed to have had the benefit of this act except upon issue 
of patent. 

Sec. 107. No person who lias served, or may hereafter serve, for a 
H. Ex. 46 v 



LXVI PUBLIC LANDS. 

period not less than fourteen days in the Army or Navy of the. United 
States, either regular or volunteer, under the laws thereof, during the 
existence of an actual war, domestic or foreign, shall be deprived of the 
benefits of this chapter on account of not having attained the age of 
twenty-one years. 

Sec. 108. When a settlement, with a view to a homestead, has been 
or shall be made upon unsurveyed public lands of the United States, 
but otherwise subject to homestead, the right of such homestead claim- 
ant shall relate back to the date of his said settlement, but upon the 
express condition that the application and affidavit heretofore required 
shall be filed within sixty days after the date upon which such lands, 
after survey, shall become subject to such filing: Provided, That the 
period of his continuous residence upon unsurveyed land shall be de- 
ducted from the three years hereinbefore required after the filing of his 
application. Upon failure to so file within said sixty days, the right of 
said claimant shall take effect only from the filing of his application, as 
in all other cases upon surveyed lands. 

Sec. 109. When settlements have been made upon unsurveyed lands, 
as provided for in the preceding section, and it shall prove, after sur- 
vey, that two or more settlers have improvements or cultivation upon 
the same legal subdivision, it shall be lawful for such settlers to file a 
joint application for their lands at the local land office, or for either of 
said settlers to enter into contract with his co-settlers to convey to them 
their portion of said lands after a patent is issued to him, and after 
making said contract to file application in his own name, and proof of 
joint occupation by himself and others, and of such contract with them 
made, shall be equivalent to proof of sole occupation by himself: Pro- 
vided, That in no case shall the amount patented under this section ex- 
ceed one huudred and sixty acres. 

Sec. 110. Where settlements, with a view to homestead, and followed 
up after survey with seasonable filing of application, have been made 
before the survey of the lands in the field, and are found to 
have been made on sections sixteen and thirty-six, those sections shall 
be subject to the homestead application of such settler ; and if they or 
either of them have been or shall be reserved or pledged for the use of 
schools or colleges in the State or Territory in which the lands lie, 
other lands of like quantity are appropriated in lieu thereof; and other 
lands are also appropriated to compensate deficiencies for school pur- 
poses where sections sixteen and thirty-six are fractional in quantity, or 
where one or both are wanting by reason of the township being frac- 
tional, or from any natural cause whatever. 

Sec. 111. No distinction shall be made in the construction or execu- 
tion of this chapter on account of race or color. 

Sec. 112. Every private soldier and officer who has served in the 
Army of the United States during the recent rebellion, for ninety days, 
and who was honorably discharged and has remained loyal to the gov- 
ernment, including the troops mustered into the service of the United 
States by virtue of the third section of an act approved February 13, 
eighteen hundred and sixty-two, and every seaman, marine, and officer 
who has served in the Navy of the United States, or in the Marine 
Corps, during the rebellion, for ninety days, and who was honorably dis 
charged and has remained loyal to the government, shall, ou compliance 
with the provisions of this chapter, as hereinafter modified, be entitled 
to enter upon and receive a patent for a quantity o( public laud not 
exceeding one hundred and sixty acres, or one quarter section, to be 
taken in compact form, according to legal sub-divisions including the 



PUBLIC LANDS. LXVII 

alternate reserved sections of public land along the line of any railroad 
or other public work, not otherwise reserved or appropriated, and other 
lands subject to entry under the homestead laws of the United States; 
but such homestead settler shall be allowed six months after filing his 
application within which to make his entry and commence his settle- 
ment and improvement. 

Sec. 113. The time which the homestead settler mentioned in section 
one hundred and twelve has served in the Army, Navy, or Marine 
Corps shall be deducted from the time heretofore required to perfect 
title; or if discharged on account of wounds received or disability in- 
curred in the line of duty, then the term of enlistment shall be deducted 
from the time heretofore required to perfect title, without reference to 
the length of time he may have served ; but no patent shall issue to 
any homestead settler who has not resided upon, improved, and culti- 
vated his homestead for a period of at least one year after he shall have 
commenced his improvements. 

Sec. 114. In case of the death of any person who would be entitled to 
a homestead under the provisions of section one hundred and twelve, 
his widow, if unmarried, or in case of her death or marriage, then his 
minor orphan children, by a guardian duly appointed and officially 
accredited at the General Land Office, shall be entitled to all the benefits 
enumerated in this chapter, subject to all the provisions as to settlement 
and improvement therein contained; but if such person died during 
his term of enlistment, the whole term of his enlistment shall be deducted 
from the time heretofore required to perfect the title. 

Sec. 115. Every soldier, sailor, marine, officer, or other person coming 
within the provisions of section one hundred and twelve, may, as well 
by an agent as in person, enter upon such homestead by filing his appli- 
cation ; but such claimant, in person or by his agent, shall, within the 
time prescribed, make his actual entry, commence residence and im- 
provements on the same, and thereafter fulfill all the requirements of 
law. 

Sec. 116. Each of the chiefs, warriors, and heads of families of the 
Stockbridge Munsee tribes of Indians, residing in the county of Shawana, 
State of Wisconsin, may, under the direction of the Secretary of the 
Interior, enter a homestead and become entitled to all the benefits of 
this chapter, free from any fee or charge ; and any part of their present 
reservation which is abandoned for that purpose may be sold, under 
the direction of the Secretary of the Interior, and the proceeds applied 
for the benefit of such Indians as may settle on homesteads, to aid them 
in improving the same. 

Sec. 117. The homestead secured by virtue of the preceding section 
shall not be subject to any tax, levy, or sale ; nor shall it be sold, con- 
veyed, mortgaged, or in any manner incumbered, except upon the de- 
cree of the district court of the United States, as provided in the fol- 
lowing section. 

Sec. 118. Whenever any of the chiefs, warriors, or heads of families of 
the tribes mentioned in section onehundred and sixteen, having filed with 
the clerk of thedistrict court of the United States a declaration of his inten- 
tion to become a citizen of the UnitedStates, and to dissolve all relations 
with any Indian tribe, two years previous thereto, appears in such court, 
and proves to the satisfaction thereof, by the testimony of two citizens, 
that for five years last past he has adopted the habits of civilized life; 
that he has maintained himself and family by his own industry ; that he 
reads and speaks the English language ; that he is well disposed to 
become a peaceable and orderly citizen ; that he has sufficient capacity 



LXVIII PUBLIC LANDS. 

to manage his own affairs, the court may enter a decree admitting him 
to all the rights of a citizen of the United States ; and thenceforth he 
shall be no longer held or treated as a member of any Indian tribe, but 
shall be entitled to all the rights and privileges and be subject to all 
the duties and liabilities to taxation of other citizens of the United 
States. But nothing herein contained shall be construed to deprive 
such chiefs, warriors, or heads of families of annuities to which they are 
or may be entitled. 

Sec. 119. That any Indian, born in the United States, who is the 
head of a family, or who has arrived at the age of twenty-one years, 
and who has abandoned, or may hereafter abandon, his tribal relations, 
shall, on making satisfactory proof of such abandonment, under rules 
to be prescribed by the Secretary of the Interior, be entitled to the 
benefits of this chapter, and of sections one hundred and fifty-three 
and one hundred and fifty-four of chapter ten of this act: Provided, 
That the title to lands acquired by any Indian by virtue hereof shall 
not be subject to alienation or incumbrance, either by voluntary con- 
veyance or the judgment, decree, or order of any court, and shall be 
and remain inalienable for a period of ten years from the date of the 
patent issued therefor: And provided further, That any such Indian 
shall be entitled to his distributive share of all annuities, tribal funds, 
lands, and other property, the same as though he had maintained his 
tribal relations; and any transfer, alienation, or incumbrance of any 
interest he may hold or claim by reason of his former tribal relations 
shall be void. 

Sec. 120. That in all cases in which Indians have heretofore en- 
tered public land under the homestead law, and have proceeded in ac- 
cordance with the regulations prescribed by the Commissioner of the 
General Land Office, or in which they may hereafter be allowed to so en- 
ter under said regulations prior to the promulgation of regulations to 
be established by the Secretary of the Interior under the preceding sec- 
tion of this act, and in which the conditions prescribed by law have been 
or may be complied with, the entries so allowed are hereby confirmed, 
and patents shall be issued thereon, subject, however, to the restrictions 
and limitations contained in the next preceding section of this act in re- 
gard to alienation and incumbrance. 

Sec. 121. That from and after the passage of this act the alternate 
sections reserved to the United States within the limits of any grant of 
public lands to any railroad company, or to any military road company, 
or to any State in aid of any railroad or military road, shall be open to 
settlers under the homestead laws to the extent of one hundred and six- 
ty acres to each settler, and any person who has, under existing laws, 
taken a homestead on any section reserved to the United States within 
the limits of any railroad or military road land grant, and who by exist- 
ing laws shall have been restricted to eighty acres, may enter under the 
homestead laws au additional eighty acres adjoining the laud embraced 
in his original entry, if such additional laud be subject to entry; or, if 
such persons so elect, he may surrender his entry to the United States 
for cancelation, and thereupon be entitled to enter lands under the 
homestead laws the same as if the surrendered entry had not been made ; 
and the residence and cultivation of such person upon and of the laud 
embraced in his original entry shall be considered residence and culti- 
vation for the same length of time upon and of the land embraced in his 
additional or new entry, and shall be deducted from the three years res- 
idence and cultivation required by law : Provided, That in no case shall 



PUBLIC LANDS. LXIX 

patent issue upon an additional or new homestead entry under tbis act 
nnfcil th3 person has actually, and in conformity with the homestead 
laws, occupied, resided upon, and cultivated the land embraced therein 
at least one year: And provided further, That except as provided in this 
section all unapproved additional homestead rights shall be and are 
hereby repealed. 

Sec. 122. Hereafter homestead applicants shall not be required to 
publish notice of their intention to make final proofs ; but in cases of 
contest, parties interested shall be cited according to regulations to 
be prescribed by the Commissioner of the General Land Office. 

Sec. 123. Whenever twenty or more persons severally qualified under 
the provisions of this chapter shall file in the proper district land office an 
application to form a homestead colony, together with a map of their 
proposed homestead colony, the register of said district land office shall 
receive and admit their separate filings for one hundred and sixty acres 
of land each, as in other homestead filings upon the arable lands of the 
United States. 

Said homestead colonists shall be permitted to reside in a village by 
them to be formed, and to be shown upon the map, directed to be filed 
in the district land office, to be located as near as may be in the center 
of said colony ; and the homestead colonists, upon whose tract the said 
village shall fall, are hereby authorized and permitted to give a deed for 
village purposes and occupation to the authorities of said village : Pro- 
vided, That said deed shall not run as against the United States until 
after title has passed from the United States for the tract upon which 
the village is situated. 

Continuous residence in said village, while cultivating and using for 
agricultural purposes their separate tracts, and said cultivation and use 
by said colonists, separately, for their own use and benefit, of the land 
embraced in their said entries, while residing in the said village, shall 
be considered equivalent to actual residence on their said lands. 

When said colonists shall settle upon unsurveyed lands, they shall 
file the map and application before mentioned in the proper district land 
office, conforming, as nearly as can be ascertained, their separate claims 
to the size of the present legal subdivisions of the public lands ; and 
they shall have possessory title to their separate lands, until the date of 
the return of the plat of the surveys of said lands to the district land 
office, after which time they shall proceed to acquire title in the manner 
set out and directed in this section for acquiring title to colony home- 
steads on surveyed lands. Joint entry of tracts in case of joint occu- 
pancy hereunder shall be permitted as in other homestead cases. 

The provisions of this chapter, relating to homesteads on arable lands, 
shall, where the same are applicable, apply to entries under this section. 

The Commissioner of the General Land Office is hereby required to 
make all proper rules and regulations for carrying into effect the above 
provisions of law. 

-Sec. 124. Where there is joint and several occupancy, at the. date 
of the passage of this act, by duly qualified homestead settlers of the 
public lands, in quantities less than the present smallest legal subdivi- 
sion of the public lands, it shall be lawful for one of said settlers and 
occupants to enter in trust under the homestead law the entire tract at 
the proper district land office, and to apportion to each of the several 
settlers or occupants their specific portions, and to make title to them 
after he or she shall have first obtained title to said tract under the home- 
stead act from the United States. 

Sec. 125. Any bona fide settler under the homestead laws of the 



LXX PUBLIC LANDS. 

United States, who has filed the proper application to enter public 
lands in any district land office, and who has been subsequently ap- 
pointed a Eegister of the Land Office, may perfect the title to -the land 
by making the payments required by law, and furnishing proof of resi- 
dence and cultivation up to the date of his appointment, to the satisfac- 
tion of the Commissioner of the General Land Office. 

Sec. 126. The pre-emption law shall be, and is hereby, repealed ; but 
nothing herein contained shall be so construed as to impair or interfere 
in any manner with existing pre-emption rights. 



CHAPTER VII. 

TIMBER CULTURE. 

Sec. 127. Any person who has made or consummated a homestead 
entry under the laws of the United States, and who still resides upon 
said tract, shall be permitted to enter upon any vacant public lands 
contiguous to his or her tract eighty acres or less in legal subdivisions 
for timber culture, on which he or she shall plant, protect, and keep in 
a healthy growing condition for eight years ten acres of timber. He 
or she shall, at the expiration of said term, be entitled to a patent for 
the whole of said tract, or of such legal subdivision as the case may be, 
on making proof of such fact by not less than two credible witnesses 
and of full compliance with the further conditions provided in the fol- 
lowing section. 

Sec. 128. The person applying for the benefits of this act shall, upon 
application to the Register of the land district in which he or she 

is about to make such entry, make affidavit as follows, to wit : I, 

— , having filed my application, No. , for an entry under the 

provisions of the timber culture act, do solemnly swear (or affirm) that 
I have heretofore filed an application for or entered a homestead, No. 

, under the laws of the United States, at the district land office at 

; that I now reside upon the laud embraced in the said 

homestead filing; that the section of land specified in my said applica- 
tion is composed exclusively of prairie lands, or other lands devoid of 
timber ; that this filing and entry is made for the cultivation of timber, 
and for my own exclusive use and benefit ; that I have made the said 
application in good faith, and not for the purpose of speculation, or 
directly or indirectly for the use or benefit of any other person or per- 
sons whomsoever ; that I intend to hold and cultivate the land and to 
fully comply with the provisions of this said act; and that 1 have not 
heretofore made an eutry under the timber culture act. And upon filing- 
said affidavit with said register, and on payment of ten dollars, he or 
she shall thereupon be permitted to enter the quantity of l:vnd specified ; 
and the party making an entry under the provisions of this act shall be 
required to break or plow five acres covered thereby the first year, five 
acres the second year, and to cultivate for crop or otherwise the five acres 
broken or plowed the first year ; the third year he or she shall be required 
to cultivate for crop or otherwise the five acres broken the second year, 
and to plant in timber, seeds, or cuttings the five acres first broken or 
plowed, and to cultivate and put in crop or otherwise the remaining live 
acres, and (he fourth year to plant in Umber, seeds, or cuttings the re- 
maining live acres : Provided, That in case such trees, seeds, or cuttings 



PUBLIC LANDS. LXXI 

shall be destroyed by grasshoppers, or by extreme and unusual drought, 
for any year or term of years, the time for planting such trees, seeds, 
or cuttings shall be extended one year for every such year that they are 
so destroyed: Provided, further, That the person making such entry 
shall, before he or she shall be entitled to such extension of time, file 
with the register of the proper land office an affidavit, corroborated by 
two witnesses, setting forth the destruction of such trees, and that, in 
consequence of such destruction, he or she is compelled to ask an ex- 
tension of time, in accordance with the provisions of this act: Andpro- 
vided further, That no final certificate shall be given, or patent issued, 
for the land so entered, until the expiration of eight years from the date 
of such entry ; and if, at the expiration of such time, or at any time 
within five years thereafter, the person making such entry, or, if he or 
she be dead, his or her heirs or legal representatives, shall prove by two 
credible witnesses that he or she or they have planted, and, for not less 
than eight years, have cultivated and protected such quantity and char- 
acter of trees as aforesaid ; that not less than twenty-seven hundred 
trees were planted on each acre, and that at the time of making such 
proof there shall be then growing at least six hundred and seventy-five 
living and thrifty trees to each acre, they shall receive a patent for such 
tract of land. 

Sec. 129. If at any time after the filing of said affidavit, and prior 
to the issuing of the patent for said land, the claimant shall fail to 
comply with any of the requirements of this chapter, then and in that 
event such land shall be subject to entry under the homestead laws, or 
by some other person under t4ie provisions of this chapter : Provided, 
That the party making claim to said land, either as a homestead settler 
or under this chapter, shall give at the time of filing his application such 
notice to the original claimant as shall be prescribed by the rules estab- 
lished by the Commissioner of the General Land Office; and the rights 
of the parties shall be determined as in other contested cases. 

Sec. 130. That no land acquired under the provisions of this act 
shall in any event become liable to the satisfaction of any debt or debts 
contracted prior to the issuing of the final certificate therefor. 

Sec. 131. That the Commissioner of the General Land Office is 
hereby required to prepare and issue such rules and regulations, consist- 
ent with this act, as shall be necessary and proper to carry its provis- 
ions into effect. 

Sec. 132. And the fifth section of the act entitled "An act in ad- 
dition to an act to punish crimes against the United States, and for 
other purposes," approved March 3, eighteen hundred and fifty-seven, 
shall extend to all oaths, affirmations, and affidavits required or author- 
ized by this act. 

Sec. 133. The parties who have already made entries under the 
acts approved March third, eighteen hundred and seventy-three, and 
March thirteenth, eighteen hundred and seventy-four, and June four- 
teenth, eighteen hundred and seventy-eight, shall be permitted to com- 
plete the same upon full compliance with the provisions of said acts. 



CHAPTER VIII. 



TOWN SITES. 



Sec. 131. The President is authorized to reserve from the public 
ands, whether surveyed or unsurveyed, town-sites on the shores of har- 



LXXII PUBLIC LANDS. 

bors, at the junction of rivers, important portages, or any natural or 
prospective centers of population. 

Sec. 135. When, in the opinion of the President, the public interests 
require it, it shall be the duty of the Commissioner of the General Land 
Office to cause any of such reservations, or part thereof, to be surveyed 
into urban or suburban lots of suitable size, and to fix, by appraisement 
of disinterested persons, their cash value, and to offer the same for sale 
at public outcry to the highest bidder, and thence afterward to be held 
subject to sale at private entry according to such regulations as the 
Commissioner of the General Land Office may prescribe; but no lot 
shall be disposed of at public sale or private entry for less than the ap- 
praised value thereof. And all such sales shall be conducted by the 
Register of the land office in the district in which the reservation may 
be situated, in accordance with the instructions of the Commissioner of 
the General Land Office. ' 

Sec. 136. Whenever any portion of the public lands have been or 
may be settled upon and occupied as a town-site, it is lawful, in case 
such town be incorporated, for the corporate authorities thereof, and, 
if not incorporated, for the judge of the county court for the county in 
which such town is situated, to enter at the proper land office, and at 
the minimum price, the land so settled and occupied in trust for the 
several use and benefit of the occupants thereof, according to their 
respective interests ; the execution of which trust, as to the disposal of 
the lots in such town, and the proceeds of the sales thereof, to be con- 
ducted under such regulations as may be prescribed by the legislative 
authority of the State or Territory in which the same may be situated. 
Any act of the trustees not made in conformity to the regulations in 
in this section shall be void. 

Sec. 137. The entry of the land provided for in the preceding section 
shall be made, or a declaratory statement of the purpose of the inhabit- 
ants to enter it as a town-site shall be filed, with the Eegister of the 
proper land office, and the entry or declaratory statement shall include 
only such land as is actually occupied by the town, and the title to which 
is in the United States; but in any Territory in which a land office 
may uot have been established, such declaratory statements may be 
filed with the surveyor general of the surveying district in which the 
lands are situated, who shall transmit the same to the General Laud 
Office, 

Sec. 138. It shall be lawful for any town which has made, or may 
hereafter make, entry of less than the maximum quantity of land named 
in section 143, to make such additional entry or entries, of contiguous 
tracts, which may be occupied for town purposes, as, when added to the 
entry or entries theretofore made, will not exceed twenty-five hundred 
and sixty acres: Provided, That such additional entry shall not, to- 
gether with all prior entries, be in excess of the area to which the town 
may be entitled at date of the additional entry by virtue of its popula- 
tion, as prescribed in said section. 

Sec. 139. No title shall bo acquired, under the foregoing provisions 
of this chapter, to any mine of gold, silver, cinnabar, or copper, or to 
any valid mining claim or possession held under existing laws. 

Sec. 140. The provisions of this chapter shall not apply to military 
or other reservations heretofore made by the United States, nor to 
reservations far light-houses, custom-houses, mints, or other such public 
purposes as the interests of the United States may require, whether 
held under reservations through the Land Office by title derived from 
the Crown of Spain or otherwise. 



PUBLIC LAKDS. LXXIII 

Sec. 141. In the patent to be issued by the United States for any 
town-site on mineral lands, under this act, there shall be recognized 
the underground and surface rights, recognized by local authority or 
law, of persons owning or possessing mining veins, and the surface 
rights of the owners or possessors of town lots, together with the neces- 
sary use thereof; but nothing contained in this section shall be so con- 
strued as to recognize any color of title in possessors for mining pur- 
poses, as against the United States. 

There shall be inserted in mining patents for claims within the ex- 
terior limits of a town, under this act, the following clause: "Except- 
ing and excluding from these presents all town property rights upon 
the surface, aud there are hereby expressly excepted and excluded from 
the same, all houses, buildings, and structures, lots, blocks, streets, 
alleys, or other municipal improvements on the surface of the above 
premises, not belonging to the grantees herein, and all rights necessary 
or proper to the occupation, possession, and enjoyment of the same." 

In the patent to be issued for a town site under this act there shall 
be inserted the following clause : " Provided, That no title shall be hereby 
acquired to any mine of gold, silver, cinnabar or copper, or to any 
valid mining claim or possession held under existing laws: And pro- 
vided, further, That the grant hereby made is held and declared to be 
subject to all the conditions aud restrictions contained in section — of 
the Eevised Statutes of the United States, so far as the same are appli- 
cable thereto." 

Sec. 142. The several counties and parishes of each State and Ter- 
ritory, where there are public lands, are authorized to enter, at the 
minimum price for which public lands of the United States are sold, 
one-quarter section of vacaut land in each of the counties or parishes, 
in trust for such counties or parishes respectively, for the establishment 
of seats of jus'tice therein; but the proceeds of the sale of each of such 
quarter sections shall be appropriated for the purpose of erecting public 
buildiugs in the county or parish for which it is located, after deducting 
therefrom the amount originally paid for the same; and the seat of jus- 
tice for such counties or parishes, respective^, shall be fixed previously 
to a sale of the adjoining lands within the county or parish for which 
the same is located. 

Sec. 113. If upon surveyed lands, the entry provided in section one 
hundred and thirty-six shall in its exterior limit be made in conformity 
to the legal subdivisions of the public lands authorized bylaw; and 
where the inhabitants are in number one hundred, and less than two 
hundred, shall embrace not exceeding three hundred and twenty acres; 
and in cases where the inhabitants of such town are more than two 
hundred, and less than one thousand, shall embrace not exceeding six 
hundred and forty acres ; and where the number of inhabitants is one 
thousand and over one thousand, shall embrace not exceeding twelve 
hundred and eighty acres; but for each additional one thousand inhab- 
itants, not exceeding five thousand in all, a further grant of three hun- 
dred and twenty acres shall be allowed. 

Sec. 111. The words "not exceeding five thousand in all,'' in the 
preceding section, shall not apply to Salt Lake City, in the Territory 
of Utah ; but such section shall be so construed in its application to 
that city that lands may be entered for the full number of inhabitants 
contained therein not exceeding fifteen thousand ; and as that city 
covers school- section number thirty-six, in township number one north, 
of range number one west, the same may be embraced in such entry, 
and indemnity shall be given therefor when a grant is made by Con- 



LXXIV PUBLIC LANDS. 

gress of sections sixteen and thirty-six, in the Territory of Utah, for 
school purposes. 

Sec. 145. The existence or incorporation of any town upon the public 
lands of the United States shall not be held to exclude from homestead 
entry a greater quantity than twenty-five hundred and sixty acres of 
land, or the maximum area which may be entered as a town-site under 
existing laws, unless the entire tract claimed or incorporated in such 
town-site shall, including and in excess of the area above specified, be 
actually settled upon, inhabited, improved, and used for business and 
municipal purposes. 

Sec. 14G. Whenever the corporate limits of any town upon the public 
domain are shown or alleged to include lands in excess of the maximum 
area specified in section one hundred and forty-three of this act, the Com- 
missioner of the General Land Office may require the authorities of such 
town (and it shall be lawful for them) to elect what portion of said lands 
in compact form and embracing the actual site of the municipal occupation 
and improvement shall be withheld from homestead entry; and thereafter 
the residue of such lands shall be open to disposal under the homestead 
laws. And upon default of said town authorities to make such selections 
within sixty days after noti tication by the Commissioner, he may direct tes- 
timony respecting the actual location and extent of said improvements 
to be taken by the Eegister of the district in which such town may be 
situated ) and upon receipt of the same he may determine and set off 
the proper site according to section one hundred and forty-three of this 
act, and declare the remaining lands open to settlement and entry un- 
der the homestead laws; and it shall be the duty of the Secretary of 
each of the Territories of the United States to furnish the Surveyor 
General of the Territory, for the use of the United States, a copy duly 
certified of every act of the Legislature of the Territory incorporating 
any city or towu, the same to be forwarded by such Secretary to the 
Surveyor General within one month from date of its approval. 



CHAPTER IX. 

IRRIGABLE LANDS. 

Sec. 147. It shall be lawful for any citizen of the United States, or 
any person of requisite age, who may be entitled to become a citi- 
zen, and who has filed his declaration to become such, and upon pay- 
ment of twenty-five cents per acre, to file a declaration, under oath, with 
the Register of the land district in which any irrigable land is situated, 
that he intends to enter and reclaim a tract or tracts of irrigable land 
by conducting water upon the same within tho period of three years 
thereafter. Said declaration shall describe particularly said land, if sur- 
veyed, and, if unsurveyed, shall describe the same as nearly as possible 
without a survey, and each tract of land shall be in a compact form, ex- 
cept that where the same is within a railroad grant it shall be deemed 
compact if in a form which, including tho sections so granted, would be 
compact. At the time of filing the declaration, the party shall also file 
a map of said land, which shall exhibit a plan showing the modeof'con- 
templated irrigation, and which plan shall be sufficient to thoroughly 
irrigate all of said land ; and persons taking up separate tracts of irri- 
gable land shall have the right to associate together in the construction 
of canals and ditches for irrigating allot" said tracts, and may file a joint 
map or maps, showing their plan of intended improvements. 



/ 



PUBLIC LANDS. LXXV 

Sec. 148. No land shall be patented to any person under this chapter 
unless he or his assigns shall have expended in the necessary reclamation 
thereof at least two dollars per acre of the whole tract reclaimed and 
patented. The determination of what may be considered irrigable land 
shall be subject, under the limitations of this act, to the provisions of 
section ninety -of this act and the regulations of the Commissioner of 
the General Land Office. 

Sec. 149. At any time within the period of three years after filing the 
declaration, affidavit, maps and plans named herein, upon makiug sat- 
isfactory proof to the Register of the reclamation of said land to the ex 
tent and cost, and in the manner aforesaid, and substantially in accord- 
ance with the plans herein provided for, and upon the payment to the 
Eegister of the additional sum of one dollar per acre tor said land, a 
patent shall issue therefor. 

Sec. 150. All locations of irrigable or desert lands heretofore made 
under an act entitled "An act to provide for the sale of desert lands in 
certain States and Territories," approved March third, one thousand 
eight hundred and seventy-seven, may be re-entered under this act by 
the persons making the same, or by their successors in interest or as- 
signs, upon their filing with the Eegister of the land district the decla- 
rations, affidavits, maps and plans required under this chapter; and such 
persons shall have three years from the passage of this act to complete 
the reclamation of such lands; and the payment of twenty-five cents 
per acre originally made by them shall be considered as the first pay- 
ment required under this act. 

Sec. 151. The right to the use of water by the person conducting the 
same on or to any tract of irrigable land shall depend on bona fide prior 
appropriation; and such right shall not exceed the amount of water 
actually appropriated and necessarily used for the purpose of irrigation 
and reclamation ; and all surplus water over and above such actual ap- 
propriation and use, together with the water of all lakes, rivers, and 
other sources of water supply upon the public lands, and not navigable, 
shall remain and be held free for the appropriation and use of the public 
for irrigation, mining, and manufacturing purposes, subject to existing 
rights. 



CHAPTER X. 

PASTURAGE LANDS. 

Sec. 152. From and after the 1st day of January, A. I>. 1881, all sur- 
veyed public lands of the United States, classified as pasturage lands 
under this act, excepting such of those lands as are legally occupied under 
the laws of the United States, shall be subject to purchase at private sale, 
upon application by any person at the respective district land offices of 
the United States, for the sum of $1.25 per aore. 

On and after January 1, A. D. 1886, the surveyed lands not legally 
occupied under laws of the United States, and classified as above, and 
remaining unsold, shall be sold as above directed at $1 per acre. 

On and after January 1, A. D. 1890, any lands classified as above set 
out, and not legally occupied under the laws of the United States, 
remaining unsold, shall be sold for seventy-five cents per acre. After 
the year A. D. 1890, the price of said lands shall be decreased twelve 
and one-half cents per acre each three years they shall remain unsold, 
until they shall reach twelve and one-half cents per acre, at which price 



LXXVI PUBLIC LANDS. 

they shall be sold, but for no less sum : Provided, That as to lands 
unsurveyed on the first day of January, A. D. 1881, said land shall be 
subject to private sale at one dollar and a quarter per acre for five years 
after survey, and thereafter they shall decrease in price upon a gradua- 
tion of time and value equivalent to that herein provided for for lands 
now surveyed. 

Provided, however, That nothing in this section shall in any manner 
prohibit or interfere with settlement on said pasturage lands, or their 
withdrawal from private sale by settlement under the homestead, pas- 
turage homestead, or irrigation laws. 

The Commissioner of the General Land Office shall make all needful 
rules and regulations for carrying into effect the above provisions of law. 

Sec. 153. Any person qualified under the provisions of this act to 
make eutry of a homestead on the arable lauds of the United States 
may, upon application at the proper district land office, be permitted to 
file a homestead upon the pasturage lands of the United States : Pro- 
vided, That no one separate entry shall embrace more than four sections 
or two thousand five hundred and sixty acres of such pasturage lands, 
and the same shall lie in a compact body. And provided further, That 
the applicant shTril pay to the United States, at the time of making his 
application, one hundred dollars. 

Sec. 154. That the provisions of this act relating to homesteads upon 
the arable lands of the United States, and the x:>rovisions of this act 
authorizing the formation of homestead colonies, through separate 
individual entries upon the surveyed and unsurveyed arable lands of 
the United States, shall, as far as they may be applicable as to term, 
location, entry, character of occupancy, settlement and village resi- 
dence, apply to entries under this section : Provided, That such con- 
tiguous village lots may each contain not more than twenty acres 
of land, and may be selected from either irrigable or pasturage lands. 
And provided further, That use for grazing purposes of the lands 
embraced in a pasturage homestead entry, with residence upon the tract, 
or in a colony village, shall be iu lieu of actual cultivation aud use for 
agricultural purposes. 



CHAPTER XL 
TIMBER LAJSDS. 

Sec. 155. All timber lands, excepting those bearing mineral, which 
are chiefly valuable for timber of commercial value, as sawed or hewed 
timber, are hereby withdrawn from sale or other disposal. 

Sec. 156. All timber exceeding eight inches in diameter growing or 
being upon the even-numbered sections of public land, which are chiefly 
valuable for timber of commercial value, as sawed or hewed timber, may 
be sold for cash in lots of not less than forty acres nor greater than six 
hundred and forty acres, or one section containing more or less than six 
hundred and forty acres : Provided, That this section shall not apply to 
lands reserved by competent authority. All moneys derived from the 
sale of timber shall be accounted for and covered into the Treasury iu 
the same manner as moneys received from the sale of public lands. 

Sec. 157. In the sale of timber from the public lands there shall be 
three grades, with a fixed price for each grade. The price of the first 
grade shall be dollars per acre ; the price of the second grade 

shall be dollars per acre; and the price of the third grade 



PUBLIC LANDS, LXXYII 

shali be dollars per acre. The grading of the timber shall be 

done by the deputy surveyors at the time of the surveys of said lauds, 
and the kind and character of timber on each section so surveyed shall 
be noted iu the field notes and marked upon the township plats. In 
case of contest said grading shall become a matter of proof, as in other 
cases provided in this act in matters relating to the character of the 
public lands. Timber upon lands surveyed before the passage of this 
act shall be classified and graded under the direction of the Commis- 
sioner of the General Land Office. 

Sec. 158. The Commissioner of the General Land Office is hereby au- 
thorized to appoint such officers as Congress may from time to time 
appropriate for, which officers shall, under the direction of the said Com- 
missioner, act as agents for the preservation of the timber on the public 
lands and for the prevention and suppression of depredations thereon, 
and shall perform such other duties as may be assigned them in 
connection with the public land service. 

Sec. 159. Every person purchasing timber under the provisions of 
this chapter shall remove the timber from the land within five years from 
the date of notice to be given by the Commissioner of the General Land 
Office, and thereafter he shall have no right to, or claim upon, any 
timber remaining upon said lands, nor upon the purchase-money paid 
therefor; and any sale madeunder this chapter shall be subject to this 
express condition. 

Sec. 160. All timber standing upon the public lands shall, after pur- 
chase as herein provided, become subject to taxation in accordance with 
the laws of the States or Territories in which the same may be situated. 

Sec. 161. All citizens of the United States and other persons bona fide 
residents thereof, shall be, and are hereby, authorized and permitted to 
fell and remove, or cause to be felled and removed, for building, agricul- 
tural, mining, and other purposes, but not for purposes of sale, com- 
merce or export, any timber or other trees growing or being on the pub- 
lic lands not subject to entry under this act, and whether upon surveyed 
or unsurveyed lands ; but subject to such rules and regulations as the 
Secretary of the Interior may prescribe for the protection of the timber 
and undergrowth growing upon such lands. 

Sec. 162. Any person who shall cut, or cause, or procure to be cut, 
or aid, or assist, or be employed in cutting, or shall wantonly destroy, 
or cause, or procure to be wantonly destroyed, or aid, or assist, or be 
employed in wantonly destroying any timber, standing, growing, or be- 
ing on any lands of the United States, including Indian reservations, 
excepting upon lands reserved for military and naval purposes, while 
held in such reservation, and not subject to the control of the Depart- 
ment of the Interior, shall pay a fine of not less than triple the value of 
the trees or timber so cut, destroyed, or removed, and shall be impris- 
oned not exceeding twelve months. 

Sec. 163. If the master, owner, or consignee, of any vessel shall 
knowingly take on board any timber cut on the public lands of the 
United States without authority of law, the vessel ou board of which 
the same shall be taken or seized, shall, with, the tackle, apparel, and 
furniture, be wholly forfeited to the United States, and the captain or 
master of such vessel wherein the same was exported to any foreign 
country against the provisions of this section, shall forfeit and pay to 
the United States a sum not exceeding twice the value of the timber so 
transported on board his vessel. 

Sec. 164. It shall be the duty of all collectors of customs within the 
States of (Florida, Alabama, Mississippi, Louisiana, California, and 



LXXVIII PUBLIC LANDS. 

Oregon, and in Washington Territory, before allowing a clearance to 
any vessel laden in whole or in part with lumber or timber, to ascertain 
satisfactorily that such timber was cut from private lands, or cut froln 
public ones by the consent of the Interior Department. And it is also 
made the duty of all officers of the customs, and of the land officers 
within those States, and within Washington Territory, to promptly 
inform the Secretary of the Interior of the acts and offenses of all per- 
sons known to them against the provisions of this law. 

Sec. 165. All penalties and forfeitures incurred under the provisions of 
sections one hundred and sixty-three and one hundred and sixty-four of 
this act shall be sued for, recovered, and accounted for, under the directions 
of the Secretary of the Interior, and the Secretary is authorized to miti- 
gate in whole or in part on such terms and conditions as he deems proper, 
by an order in writing, any tine, penalty, or forfeiture so incurred ; and 
all actions or causes of actions, either civil or criminal, for depredations 
committed by cutting or removing timber from the public lands, prior 
to the passage of this act are hereby condoned and quashed : Provided, 
That in all cases where suits have been commenced, the dismissal of the 
cases shall be at the cost of defendants. 

Sec. 166. Nothing contained in the four preceding sections shall be 
construed as repealing sections 2460, 2461, 2462, 2463, and 4751 of the 
Revised Statutes, but the same shall be of general application. 



CHAPTER XII. 

MINERAL LANDS. 

Sec. 167. The public lands of the United States, classified by law as 
mineral lands, shall be reserved from sale or disposal, except as expressly 
directed by law. 

Sec. 168. All valuable mineral deposits in public lands of the United 
States, both surveyed and unsurveyed, are hereby declared to be free 
and open to exploration, and surface and subterranean prospecting. 
The lands in which such mineral deposits are found shall be open to 
occupation and purchase by citizens of the United States, and those 
who have declared their intention to become such, upon the ternis and 
conditions hereinafter prescribed. 

Sec. 169. Any mining claims located after the day of , 18S0, 

shall be bounded as to surface by straight liues, and all right to min- 
erals contained therein shall be confined within vertical planes passing 
downward through said straight boundary lines. 

Sec. 170. A mining claim located after day of may equal 

but shall not exceed a square of feet on the side, and the same may 
be in any shape, so that neither length nor breadth shall exceed feet, 
nor the aggregate area exceed that of the square hereinbefore first 
described. 

Sec. 171. Proof of citizenship under this chapter may consist, in the 
case of an individual, of his own affidavit thereof; in the case of an 
association of persons unincorporated, of the affidavit of their authorized 
agent, made on his own knowledge or upon information and belief; and 
in the case of a corporation organized under the laws of the United 
States, or of any State or Territory thereof, by the filing of a certified 
copy of their charter or certificate of incorporation. 

Sec. 172. All future occupation, location or purchase of public min- 



PUBLIC LANDS. LXXIX 

oral lands shall be governed by laws of Congress, to the exclusion of all 
local customs and regulations and State or Territorial laws. 

Sec. 173. No title, or valid claim to title, to public mineral lands shall 
be acquired as against the United States or third parties, except upon 
compliance with the following conditions and requirements. 

Sec. 174. Any qualified person may acquire such claim or title : 

First. By marking the position of his claim by monuments upon the 
ground and by posting notices thereon. Said ■ monuments shall con- 
sist either of firmly set wooden stakes, not less than six inches square, 
and not less than three feet above ground; or of well set piles of stones 
not less than four feet square at the base and not less than three feet 
high, posted at each exterior angle of the claim. The northeasternmost 
monument shall be the initial point for description and survey, and shall 
be conspicuously marked u O." Said notices shall, within five days 
from the establishment of the monuments, be posted conspicuously upon 
each of said monuments, and, in addition thereto, at least three of said 
notices shall be posted upon conspicuous places within the interior of 
said claim. Said notices shall be dated with the establishment of said 
monuments, shall describe the exterior boundaries of the claim by 
specific reference to the monuments established on the ground, and 
shall note the approximate courses and distances passing southerly, 
westwardly, northerly, and eastwardly from tfcie initial monument 
around the entire boundary closing upon said initial monument. A 
specific form of notice shall be prescribed by the Commissioner of the 
General Land Office to embody the foregoing requirements, and be so 
explicit as to operate as notice to third parties. 

Second. By the discovery within said claim of a lode, placer, or other 
valuable mineral deposit, either before the posting of said notice or 
within ninety days thereafter. 

Third. Within ninety days from the posting of said notice, the locator 
shall file with the United States Surveyor General for the surveying 
district in which the claim lies a copy of said posted notices, together 
with proof of mineral discovery and an application for survey of his 
claim, and evidence that he has deposited to the credit of the United 
States in a proper United States depositary the sum of fifty dollars, 
which deposit shall be deemed an addition to the appropriation for the 
survey of the public lands. Said proof shall consist of affidavits of the 
locator and of two disinterested persons, and the fact of said mineral 
discovery shall be subject to such further proof or verification as the 
Commissioner of the General Land Office may deem necessary. Said 
application shall be in writing, signed by the locator. 

Fourth. Within one year from the approval by the United States Sur- 
veyor General of said survey, the locator, his assigns, or his duly author- 
ized agent, who has or have complied with the terms of this chapter, 
shall file in the proper land office an application for patent under oath, 
showing such compliance, together with a copy of the plat and field notes 
of the claim, duly certified by the United States Surveyor General, and 
proof that $500 worth of labor has been expended or of improvements 
made upon the claim by the claimant or his grantors. Said proof shall 
consist of the affidavits of the claimant or his duly authorized agent, 
corroborated by the affidavits of two disinterested witnesses, which shall 
set forth the facts in sufficient detail to satisfy the Commissioner of the 
General Land Office that the said mineral claim has been worked in 
good faith. Upon the riling of the applicarion and plat and making the 
above-required proof, and upon payment to the proper officers of 



LXXX PUBLIC LANDS. 

per acre in full for the acreage of his claim, the claimant shall be enti- 
tled to a patent for his said claim. 

Sec. 175. The right of assignment of a mineral claim after approval 
of survey by the United States Surveyor General is hereby expressly 
authorized, but such assignment shall confer no right as against the 
United States, and shall simply substitute an assignee in place of his 
grantors. No assignment prior to survey shall be recognized. 

Sec. 176. Failure by a locator to make application for survey and sat- 
isfactorily prove the mineral discovery within ninety days after the 
posting of the notices shall subject his claim to location by any other 
qualified party. 

Sec. 177. Failure of the claimant to make proof of work and payment 
within the time hereinbefore prescribed shall work a complete forfeit- 
ure of the claim, and the survey theretofore made shall be canceled. 

Sec. 178. On or before , 1880, the Commissioner of the 

General Land Office shall divide the territory west of the 100th meridian 
into mineral districts, so that each Surveyor General's district shall be 
made up of one or more mineral districts, having due regard to the 
number of surveys of mineral claims and applications for the same. 

Sec. 179. TheSurveyor General shall — 

First. Cause to be established in all mining neighborhoods or districts 
permanent neighborhood or district initial mineral monuments, which 
shall serve as initial reference points for mining claim surveys, and 
which shall be connected by trigonometrical measurement with mineral 
base lines, to be established and measured by such methods as may be 
prescribed by law. 

Second. He shall cause to be determined by trigonometrical measure- 
ment the exact course and distance between said initial district mineral 
monuments and the hereinbefore described initial claim monuments. 

Third. He shall receive, place on file, and record, in a book kept in 
his office for that purpose, every application for the survey of a mining 
claim, together with the original location notice of the claimant. 

Fourth. When two or more locators make application to a Surveyor 
General for the survey of the same tract, either in whole or in part, and 
neither survey has theretofore been approved, the right to approval shall 
be in him who made the first location on the ground ; and such priority 
of location shall, in the first instance, be determined by the officer in 
the field, and any party aggrieved thereby may, within ninety days after 
such determination, appeal to the United States Surveyor General, by 
whom the question may be reviewed, upon notice to the appellee, and 
after reasonable orjportunity for the introduction of proof by both par- 
ties. 

Fifth. He shall cause some duly appointed deputy mineral surveyor, 
chosen by the applicant for survey, to execute a survey of each claim 
for which an application is filed in his office, and to return the plat 
and field notes of said survey to his office. 

Sixth. He shall keep in his office connected maps of all mining neigh- 
borhoods in his district, upon which shall be shown the positions of all 
mineral mjonuments and their relations to leading topographical features 
in their immediate vicinity, and the positions of all surveyed claims 
which do not overlap previously surveyed claims, numbering said sur- 
veys consecutively in the order of the return of plats and field notes by 
deputy mineral surveyors. He shall ascertain in whatever mode he 
shall deem most practicable the location of all mining claims heretofore 
surveyed or patented and shall delineate 4 the same upon the connected 
district maps as accurately as possible. On the return of the said plats 



PUBLIC LANDS. LXXXI 

and field notes by the deputy mineral surveyor, the Surveyor General, 
having caused the trigonometrical measurement as hereinbefore pro- 
vided to be made between the nearest initial district mineral monument 
and the initial monument of the mining claim, shall apply said mineral 
claim survey to his district map and, provided said claim or any part 
thereof does not overlap any previously applied plat and is otherwise 
correct, he shall approve said survey and within ten days thereafter 
shall delineate it upon said district map and make two full copies of 
said plat and field notes, forwarding one to the Commissioner of the Gen- 
eral Land Office and the other to the Eegister of the proper laud office. 
Said district map shall be open to examination by the public. Copies of 
all approved surveys shall be furnished to interested parties on payment 
of costs as fixed by the Commissioner of the General Land Office. If the 
said Surveyor General applies any duly returned plat to said district 
maps, and said plat is found to conflict with or overlap a previously 
approved survey said Surveyor General shall withhold approval thereof, 
and no legal effect shall attach to the same by reason of its having been 
made in the field nor by reason of any approval thereof if the same 
should inadvertently or accidentally be approved in conflict with prior 
approval. 

Sec. 180. It shall be the duty of each Surveyor General within whose 
surveying district any mineral surveys have been or shall be made, and 
within thirty days after expiration of the ten days above mentioned, to 
furnish, free of cost, to each district land office and to the recorder of 
each county certified copies of such of said connecting maps as may 
embrace lands within the limits of said land district or within said 
counties, respectively ; and copies shall also be furnished to deputy 
mineral surveyors at the discretion of the said Surveyor-General. 

Sec. 181. Within thirty days after approval of any subsequent sur- 
vey it shall be the duty of each Surveyor General to turnish to each dis- 
trict land office and to the several county recorders a certified copy of 
such of said subsequent surveys as may fall within said land district 
and counties, respectively, and the district land offices shall forthwith 
cause said survey to be immediately delineated in its proper position 
upon the connecting maps theretofore furnished them. 

Sec. 182. Each of said connecting maps shall show in a marginal table 
the date of approval of the several surveys delineated thereon, and 
said marginal table shall be regularly continued as subsequent surveys 
are added to said connecting maps. Each copy hereinbefore provided 
for shall also exhibit the exact date of such approval or approvals. 

Sec. 183. In the event that proof of bona fide development and pay- 
ment of purchase money shall not be made or tendered within the year 
heretofore prescribed, it shall be the duty of the Register of the proper 
land office to notify the Commissioner of the General Land Office, who 
shall forthwith cause said survey to be cancelled in ail the offices under 
his control, and shall cause notice thereof to be sent to the recorder of 
the county wherein the cancelled survey was situate. After said can- 
cellation no right or claim of any character shall survive in any party 
by reason of said survey, and the land embraced therein shall be sub- 
ject to the claim of any intervening or subsequent party, as if no such 
survey had ever been made or applied for. 

Sec. 184. Copies of said connecting maps shall also be furnished to 
the Commissioner of the General Land Office, who shall cause the same 
to be continuously perfected, as hereinbefore prescribed as to other of- 
fices. 

Sec. 185 If any Surveyor General, wilfully or negligently omits to 
H. Ex. 46 vi 



LXXXII PUBLIC LANDS. 

promptly perform the duties prescribed in this chapter, it shall be con- 
sidered sufficient cause for his dismissal from office. 

Sec. 186. If at any time after application for survey, and prior to ap- 
plication for patent, it shall be proved, after personal notice to the min- 
eral claimant, to the satisfaction of the Register of the proper land dis- 
trict, that said claimant has left his surveyed claim with the intention 
of not complying with the provisions of this chapter, the right of said 
claimant shall cease and determine, after notice in the usual form to 
the claimant of said decision by the district Eegister ; and in the absence 
of appeal to the Commissioner of the General Land Office, the latter 
officer shall cause the cancellation of the said survey, as hereinbefore 
l>rovided. 

Sec. 187. The Surveyors General of the United States may appoint 
in their respective districts as many competent surveyors, furnishing 
satisfactory evidence of professional capacity, and giving bond in the 
penal sum of $10,000, as shall apply for appointment to survey mineral 
claims. The expense of surveying claims shall be paid by the appli- 
cants, and they shall be at liberty to obtain the same at the most rea- 
sonable rates ; and they shall also be at liberty to employ any United 
States deputy surveyor to make the survey. 

Sec. 188. The Commissioner of the General Land Office shall also have 
power to establish the maximum of charges for surveying, and any dep- 
uty surveyor proved to have exceeded this maximum shall forfeit his 
commission, and shall not thereafter be eligible for appointment. 

Sec. 189. All affidavits required to be made under this chapter may 
be verified before any judge or clerk of a court of record, or before any 
officer authorized to administer oaths, whose official capacity shall be 
properly verified ; and all testimony and proofs may be taken before 
any such officer, and when duly certified by the officer taking the same 
shall have the same force and effect as if taken before the Register of 
the land office. In cases of contest as to the mineral or agricultural 
character of the land, the testimony and proofs may be taken as herein 
provided, on personal notice of at least ten days to the opposing party, 
or if such party cannot be found, then by the publication of at least 
once a week for thirty days iu a newspaper to be designated by the 
Register of the land office as published nearest to the location of such 
land, and the Register shall require proof that such notice has been 
given. 

Sec. 190. All rights which have attached to mining claims under pre- 
vious acts of Congress shall not be affected by the operations of this 
chapter: Provided, That where such claims have not been or shall not 
within one year thereafter be consummated by the required payment of 
purchase money, such uneonsummated claims shall lapse, and the land 
embraced therein shall thereafter be subject only to the operations of 
this chapter. 

Sec. 191. Where land is used or occupied by the proprietor of a min- 
ing claim for mining or mill purposes, such laud may bo embraced and 
included in an application for a patent for such mining claim, and the 
same may be patented therewith, subject to the same preliminary re- 
quirements as to survey and notice as are applicable to mineral claims; 
but no location hereafter made of such mill-site shall exceed five acres, 
and the same must be paid for at the same rate as fixed by this chapter 
for the superficies of the mineral claim. The owner of reduction works, 
not owning a mine in connection therewith, may also receive a pat- 
ent for his mill-site as provided iu this section. 

Sec. 192. As a condition of sale, in the absence of necessary legisla- 



PUBLIC LANDS. LXXXIII 

tion by Congress, tlie local Legislature of any State or Territory may 
provide rules for working mines, involving easements, drainage, and 
other necessary means to their complete development j and this condi- 
tion shall be fully expressed in the patent. 

Sec. 193. Whenever, l?y priority of possession, rights to the use of 
water for mining, agricultural, manufacturing, or other purposes, have 
vested and accrued, and the same are recognized and acknowledged by 
the local customs, laws, and the decisions of courts, the possessors and 
owners of such vested rights shall be maintained and protected in the 
same, and the right of way for the construction of ditches and canals 
for the purposes herein specified is acknowledged and confirmed ; but 
whenever any person, in the construction of any ditch or canal, injures 
or damages the possession of any settler on the public domain, the party 
committing such injury or damage shall be liable to the party injured 
for such injury or damage. 

Sec. 194. All patents granted, or pre-emption or homesteads allowed, 
shall be subject to any vested and accrued water-rights, or rights to 
ditches and reservoirs used in connection with such water-rights, as may 
have been acquired under or recognized by the preceding section. 

Sec. 195. Wherever, upon the lands heretofore improperly designated 
as mineral lands, which have been excluded from survey or sale, there 
have been homesteads made by citizens of the United States, or persons 
who have declared their intention to become citizens, which homesteads 
have been made, improved, and used for agricultural purposes, and upon 
which there have been no valuable mines of gold, silver, cinnabar, lead, 
copper, coal, iron, or other valuable deposit discovered, and which are 
properly agricultural lands, the settlers or owners of such homesteads 
shall have a right to avail themselves of the provisions of chapter sixth 
of this title, relating to homesteads. 

Sec. 196. Upon the survey of the lands described in the preceding 
section, the Secretary of the Interior may designate and set apart such 
portions of the same as are clearly agricultural lands, which lands shall 
thereafter be subject to homestead and sale as other public lands, and 
be subject to all the laws and regulations applicable to the same. 

Sec. 197. The President is authorized to establish additional land 
districts, and to appoint the necessary officers under existing laws, 
wherever he may deem the same necessary for the public convenience in 
executing the provisions of this chapter. 

Sec. 198. The provisions of the preceding sections of this chapter 
shall not apply to the mineral lands situated in the States of Michigan, 
Wisconsin, and Minnesota, which are declared free and open to explora- 
tion and purchase, according to legal subdivisions, in like manner as 
before the tenth day of May, eighteen hundred and seventy-two. And 
any bona fide entries of such lands within the States named, since the 
tenth day of May, eighteen hundred and seventy-two, may be patented 
without reference to any of the foregoing provisions of this chapter. 
Such lands shall be offered for public sale in the same manner, at the 
same minimum price, and under the same rights of pre-emption as other 
public lands* 

Sec. 199. No act passed by Congress, granting lands to States or cor- 
porations to aid in the construction of roads or for other purposes, or to 
extend the time of such grants, shall be so construed as to embrace 
mineral lands, which in all cases are reserved exclusively to the United 
States, unless otherwise specially provided in the act or acts making the 
grant. 



LXXXIV PUBLIC LANDS. 

Sec. 200. Section 2323 of the Eevised Statutes of the United States, 
relating to tunnel rights, is hereby repealed. 

Sec. 201. Every person above the age of twenty-one years, who is a 
citizen of the United States, or who has declared his intention to be- 
come such, or any association of persons severally qualified as above, 
shall, upon application to the Register of the proper land office, have the 
right to enter, by legal subdivisions in a compact body, any quantity 
of vacant public lands of the United States containing coal and iron 
valuable for domestic or commercial purposes, not exceeding three hun- 
dred and twenty acres, and not otherwise appropriated or reserved by 
competent authority, upon payment to the Register of not less than ten 
dollars per acre for such lands. 

Sec. 202. Where any such person or association of persons shall have 
opened or improved any coal or iron mine upon unsurveyed public lands, 
and shall be in actual possession of the same, such person or association 
shall be entitled after survey to a preference right of entry of such 
lands: Provided, That said entry shall be effected within sixty days after 
publication of notice of return of the township plat to the district land 
office. 

Sec. 203. The two preceding sections shall be held to authorize only 
one entry by the same person or association of persons ; and no associ- 
ation of persons, any member of which shall have taken the benefit of 
such sections either as an individual or as a member of any other asso- 
ciation, shall hold or enter any other lands under the provisions thereof; 
and no member of any association which shall have taken the benefit of 
such sections shall enter or hold any other lands under their provisions. 

Sec. 204. In case of conflicting claims for the purchase of coal or 
iron lands, where the right of either party was initiated when the lands 
were unsurveyed, priority of possession and improvement, followed by 
continuous and bona-fide occupation, shall determine the preference right 
to purchase ; but joint purchase shall be allowable on consent of the par- 
ties, or when, in the judgment of the Commissioner of the General Land 
Office, the conflict was created without notice of any prior claim. 

Sec. 205. Nothing in the four preceding sections shall be construed 
to destroy or impair any rights which may have attached prior to the 
passage of this act, or to authorize the sale of lands valuable for mines 
of gold, silver, or copper. The Commissioner of the General Land Office 
is authorized to issue all needful rules and regulations for carrying into 
effect the provisions of this and the four preceding sections. 

CHAPTER XIII. 

PRIVATE LAND CLAIMS. 

Sec. 20G. It shall and may be lawful for any person or persons, or 
their legal representatives, claiming lands within the limits of the ter- 
ritory derived by the United States from the Republic of Mexico and 
now embraced within the Territories of New Mexico, Wyoming, Ari- 
zona, or Utah, or within the States of Nevada or Colorado, by virtue of 
such lawful Spanish or Mexican grant, concession, warrant, or survey as 
the United States are bound to recognize by virtue of the treaties of 
cession of said country by Mexico to the United States, which, at the 
date of the passage of this act, have not been confirmed by act of Con- 
gress, or otherwise decided upon by lawful authority, in every such case 
to present a petition, in writing, to the judge of the district court of the 
United States in a State or Territory for the judicial district in which 



PUBLIC LANDS. LXXXV 

such lauds may be situate, setting forth fully the nature of their claims 
to the lands, and particularly stating the date and form of the grant, 
concession, warrant, or order of survey under which they claim, by 
whom made, the name or names of any person or persons in possession 
of or claiming the same, or any part thereof, otherwise than by the lease 
or permission of the petitioner; and, also, the quantity of land claimed 
and the boundaries thereof, where situate, with a map showing the same 
as near as may be; and whether the said claim has heretofore been con- 
firmed, considered, or acted upon by Congress, or the authorities of the 
United States, or been heretofore submitted to any authorities consti- 
tuted by law for the adjustment of land-titles within the limits of the 
said territory so acquired, and by them reported on unfavorably or rec- 
ommended for confirmation, or authorized to be surveyed or not ; and 
praying in such petition that the validity of such title or claim may be 
inquired into and decided. And the said courts respectively are hereby 
authorized and required to take and exercise jurisdiction of all cases or 
claims presented by petition in conformity with the provisions of this 
act, and to hear and determine the same, as hereinafter provided, on the 
petition and proofs in case no answer or answers be filed after due no- 
tice, or on the petition and the answer or answers of any person or per- 
sons interested in preventing any claim from being established, and the 
answer of the district attorney, where he may have filed an answer, and 
such testimony and proofs as may be taken ; and a copy of such peti- 
tion, with a citation to any adverse possessor or claimant, shall, im- 
mediately after the filing of the same, be served on such possessor or 
claimant in the ordinary legal manner of serving such process in the 
proper State or Territory, and in like manner on the district attorney 
of the United States ; and it shall be the duty of the United States 
attorney for the proper district, as also any adverse possessor or claim- 
ant, after service of petition and citation, as hereinbefore provided, 
within thirty days, unless further time shall, for good cause shown, be 
granted by the judge or court to whom said petition is presented, to 
enter an appearance, and plead, answer, or demur to said petition ; 
and in default of such plea, answer, or demurrer being made within said 
thirty days, or within the further time which may have been granted as 
aforesaid, the court shall proceed to hear the cause on the petition and 
proofs, and render a final decree according to the provisions of this act; 
and in no case shall a decree be entered otherwise than upon full legal 
proof and hearing ; and in every case the court shall require the peti- 
tion to be sustained by satisfactory proofs, whether an answer or plea 
shall have been filed or not. 

Sec. 207. All proceedings subsequent to the filing of said petition 
shall be conducted as near as may be according to the rules of the 
courts of equity in the proper Territory or court of the United States in 
the States, except that the answer of the attorney of the United States 
shall not be required to be verified by his oath, and no continuance shall 
be granted unless for good cause shown; and the said courts shall have 
full power and authority to hear and determine all questions arising in 
said case relative to the title of the claimants, the extent, locality, and 
boundaries of said claim, or other matters connected therewith, fit and 
proper to be heard and determined, and by a final decree to settle and 
determine the question of the validity of the title and the boundaries of 
the grant or claim presented for adjudication, according to the law of na- 
tions, the stipulations of the treaty concluded between the United States 
and the Republic of Mexico, at the city of Guadalupe Hidalgo, on the 
second day of February, in the year of our Lord one thousand eight 



LXXXVI PUBLIC LANDS. 

hundred and forty-eight, or the treaty concluded between the same 
powers at the city of Mexico, on the thirtieth day of December, in 
the year of our Lord one thousand eight hundred and fifty-three, and 
the laws and ordinances of the government from which it is alleged to 
have been derived, and all other questions properly arising between the 
claimants or other parties in the case and the United States, which 
decree shall in all cases refer to the treaty, law, or ordinance under 
which such claim is confirmed or rejected ; and in all cases the party 
against whom the judgment or decree of said district court may be 
finally rendered shall be entitled to au appeal to the supreme court of 
t he proper Territory, or if the case be in a United States court in a State, 
to the Supreme Court of the United States, which shall be taken and 
allowed in the manner now prescribed by law for taking appeals from 
said courts ; which Supreme Court shall retry the cause, as well the 
issues or questions of fact as of law, and may hear testimony in addi- 
tion to that given in the court below; and either party shall be allowed 
one year in which to appeal from the decision of the supreme court of 
such Territory or the district court in a State to the Supreme Court of 
the United States, in which court every question shall be open, and 
whose decision shall be final and conclusive ; and should no appeal be 
taken, the judgment or the decree of the said district court shall in like 
manner be final and conclusive, as also the decision of the supreme 
court of the Territory unless appealed from. 

Sec. 208. The testimony which has been heretofore lawfully and 
regularly received by the Surveyor-General of the proper Territory 01 
State, or by the Commissioner of the General Land Office, upon all 
claims presented to them respectively, shall be admitted in evidence in 
all trials under this act when the person testifying is dead, so far as the 
subject-matter thereof is competent evidence ; and the court shall give 
it such weight as, in its judgment, under all the circumstances, it ought 
to have. 

Sec. 209. It shall be the duty of the Commissioner of the General 
Land Office of the United States, the Surveyor-Generals of such Terri 
tories and States, or the keeper of any public records who may have 
possession of the records and testimony pertaining to any land-grants 
or claims for land within said States and Territories, in relation to which 
any petition shall be brought under this act, on the application of any 
person interested, or by the attorney of the United States for either of 
said Territories or districts, to furnish copies of such records and testi- 
mony, certified under his official signature, with the seal of office thereto 
annexed, if there be a seal of office; which copies, if the originals are 
not within the jurisdiction of the court, shall have the same effect as 
testimony that the originals would have if produced. The legal fees 
shall be paid for such copies by the parties applying for the same, ex- 
cept the attorney of the United States. 

Sec. 210. The provisions of this act shall extend only to such claims 
as may be presented and filed within three years from the date of its 
passage; and all petitions under this act may be presented in vacation 
or term-time, but the final hearing on the same shall be had and the 
final decree rendered only at the regular terms of the district courts: 
and the judges of said district courts and the supreme courts in the said 
Territories are hereby authorized, in vacation, in all cases arising under 
this act, to grant all orders for taking testimony, or otherwise to hear 
and dispose of all motions, aud do all other things necessary to be doue 
to bring the same on to a final hearing. 

Sec. 211. Upon the final decision of any claim prosecuted under this 
act, in favor of the claimant or claimants, it shall be the duty of the 



PUBLIC LANDS. LXXXYII 

clerk of the court in which such final decree is had to transmit a duly 
certified copy of the decree to the Surveyor General of the proper Ter- 
ritory, who shall thereupon cause the lands specified in said decree to 
be surveyed at the expense of the United States. Triplicate plats and 
certificates of the survey so made shall be returned into his office, one 
of which shall remain in his office, and one, dulv authenticated, shall be 
delivered, on demand, to the party interested therein, and one shall be 
sent to the Commissioner of the General Land Office 5 on receipt and 
approval of which survey and plat by said Commissioner the President 
of the United States shall issue a patent to said claimant, subject to 
the provisions of this act ; but one-half the necessary expense of making 
such survey and plat shall be paid by the claimant, and shall be a lien 
on said land, which may be enforced by sale of so much thereof as shall 
"be necessary for that purpose, after a default of payment thereof for 
six months next after the approval of such survey and plat; and no 
patent shall issue until such payment. 

Sec. 212. The clerk of the court in which such petition may be filed 
shall, and he is hereby directed, when any petition or claim is filed un- 
der the provisions of this act, before any proceedings thereon, subject 
to the direction of a judge, to require reasonable security for all costs 
and charges which may accrue thereon in prosecuting the same to a 
final decree; and the district attorney, clerk, marshal, and witnesses 
shall severally be allowed such fees for their services and attendance as 
may be allowed by law for the like services and attendance in the United 
States courts for the proper State or Territory. 

Sec. 213. It shall be the duty of the attorney of the United States 
for the proper Territory, in every case when the decision or decree of 
the district court is against the United States, to appeal the cause to 
the supreme court of the Territory; and if the decision of the latte 
court be against the United States, a copy of the decree, with a state 
ment of the legal questions involved, shall be transmitted by the distric 
attorney to the Attorney- General; and in like manner he shall transmit 
a copy of the decree in any case in the district court in a State, and, 
unless the Attorney-General shall otherwise direct, the district attorney 
shall appeal the cause to the Supreme Court of the United States. 

Sec. 214. If in any case it shall so happen that the lands decreed to 
any claimant under the provisions of this act shall have been sold or 
granted for a valuable consideration by the United States, it shall be 
lawful for such claimants, or their legal representatives, at any time 
within one year after the rendition of the final decree in their favor, to 
execute and file, in the office of the Commissioner of the General Land 
Office, a release to the United States of all right, title, or claim to the 
land so sold or granted by the United States ; and thereupon there shall 
be issued by the said Commissioner (under such regulations as may be 
prescribed by the Secretary of the Interior), to such claimant or his 
legal representatives, scrip for an equal amount of acres so released 
in quantities not exceeding six hundred and forty acres each, which 
scrip shall be assignable in such form as may be prescribed by said 
Secretary, and shall be receivable in payment for any public lands in 
either of said Territories or States respectively that may be subject to 
private entry. 

Sec. 215. The provisions of this act shall extend to any city lot, town 
lot, village lot, farm lot, or pasture lot held under a grant from any cor- 
poration or town to which lands may have been lawfully granted for the 
establishment of a city, town, or village by the Spanish or Mexican 
Government, or the lawful authorities thereof; but the claim for said 



LXXXVIII PUBLIC LANDS. 

city, towD, or village shall be presented by the corporate authorities of 
the said city, town, or village, or, where the laud upon which said city, 
town, or village is situated was originally granted to an individual, the 
claim shall be presented by or in the name of said individual. 

Sec. 216. All claims which are capable of being prosecuted under the 
provisions of this act shall, after three years from the taking effect of 
this act, if no petition in respect to the same shall have been filed as 
hereinbefore provided, be deemed and taken, in all courts and elsewhere, 
to be abandoned, and shall be forever barred. 

Sec. 217. All the foregoing proceedings and rights shall be conducted 
and decided, subject to the following provisions, as well as to the other 
provisions of this act, namely : 

First. No claim shall be allowed that shall not appear to be upon a , 
title lawfully and regularly derived from the Government of Spain or 
Mexico, or, if incomplete, one that at the date of the acquisition of the 
territory by the United States the claimant would have had a lawful 
right to make perfect, had the territory not been acquired by the United 
States, and that the United States are bound upon the principles of 
public law, or by the provisions of the treaty of cession, to respect and 
permit to become complete and perfect. 

Second. No claim shall be allowed that shall interfere with or over- 
throw any just and unextinguished Indian title or right to any land or 
place. 

Third. No allowance or confirmation of any claim shall confer any 
right or title to any gold, silver, or quicksilver mines or minerals, unless 
the grant claimed effected the donation or sale of such mines or minerals 
to the grantee ; but all such mines and minerals shall remain the prop- 
erty of the United States, with the right of working the same, which 
fact shall be stated in any patents issued under this act. 

Fourth. No claim shall be allowed for any land the right to which 
has hitherto been lawfully acted upon and decided by Congress, or 
under its authority. 

Fifth. No proceeding, decree, or act under this chapter shall conclude 
or affect the private rights of persons as between each other ; all which 
rights shall be reserved and saved to the same effect as if this act had 
not been passed ; but the proceedings, decrees, and acts herein pro- 
vided for shall be conclusive of all rights as between the United States 
and all persons claiming any interest or right in such lands. 

Sixth. No confirmation of or decree concerning any claim under this 
chapter shall in any manner operate or have effect against the United 
States otherwise than as a release by the United States of its right and 
title to the land confirmed ; nor shall it operate to make the United 
States in any manner liable in respect of any such grants, claims, or 
lands, or their disposition, otherwise than as herein provided. 

Seventh. No confirmation shall in any case be made or patent issued 
for a greater quantity than eleven square leagues of land, to or in the 
right of any one original grantee or claimant, nor for a greater quantity 
than was authorized by the respective laws of Spain or Mexico applica- 
ble to the claim. 

Sec. 218. Section eight of the act of Congress approved July twenty- 
second, anno Domini eighteen hundred and fifty -four, entitled "An act 
to establish the offices of surveyor-general of New Mexico* Kansas, and 
Nebraska, to grant donations to actual settlers therein, and for other 
purposes," and all acts amendatory or in extension thereof, or supple- 
mentary thereto, and all pro visions of law inconsistent with this chapter 
shall be, and the same are hereby, repealed. 



PUBLIC LANDS LXXXIX 

Sec. 219. In case of any claim to laud in any State or Territory which 
has heretofore been confirmed by law, and in which no provision is made 
by the confirmatory statute for the issue of a patent, it may be lawful, 
where surveys for the land have been or may hereafter be made, to 
issue patents for the claims so confirmed, upon the presentation to the 
Commissioner of the General Land Office of plats of survey thereof, 
duly approved by the Surveyor General of any State or Territory, if 
the same be found correct by the Commissioner ; but such patents 
shall only operate as a relinquishment of title on the part of the United 
States, and shall in no manner interfere with any valid adverse right to 
the same land, nor be construed to preclude a legal investigation and 
decision by the proper judicial tribunal between adverse claimants to 
the same land. 

Sec. 220. Where persons in good faith and for a valuable consid- 
eration have purchased lands of Mexican grantees, or assigns, which 
grants have subsequently been rejected, or where the lands so purchased 
have been excluded from the final survey of any Mexican Grant, and have 
used, improved, and continued in the actual possession of the same as 
according to the lines of their original purchase, such purchasers shall 
have the right to purchase the same, after having such lands surveyed 
under existing laws, at one dollar and twenty-five cents per acre, upon 
making proof of the facts as required in this section, under regulations 
to be provided by the Commissioner of the General Land Office, joint 
entries being admissible by coterminous proprietors to such an extent 
as will enable them to adjust their respective boundaries : Provided, 
That the provisions of this section shall not be applicable to any city or 
town, nor shall the right to purchase herein given extend to lands con- 
taining mines of gold, silver, copper, or cinnabar. 

Sec. 221. In all cases of confirmation by the first section of the act 
of Congress approved June second, eighteen hundred and fifty-eight, 
entitled "An act to provide for the location of certain confirmed private 
land-claims in the State of Missouri, and for other purposes,' 7 and in all 
cases of final decisions in favor of land claimants made by the commis- 
sioners under section four of the act of Congress approved March third, 
eighteen hundred and seven, entitled "An act respecting claims to land 
in the Territories of Orleans and Louisiana," or where any private land 
claim had been confirmed by Congress before June second, eighteen 
hundred and fifty-eight, and the same, in whole or in part, had not been 
located or satisfied, either for want of a specific location prior to such 
confirmation, or for any reason whatsoever, other than a discovery of 
fraud in such claim subsequent to such confirmation, tbe confirmees, or 
their heirs or legal representatives, may proceed by petition against the 
United States for certificates of location for a quantity of land equal to 
that so confirmed and unsatisfied, in any district court of the United 
States within whose jurisdiction any part of such claim may lie ; and 
the petition shall be verified by the oath of the petitioners, and conform 
to the practice of the courts in cases arising under the act of Congress 
approved June twenty-second, eighteen hundred and sixty, entitled "An 
act for the final adjustment of private land claims in the States of Florida, 
Louisiana, and Missouri, and for other purposes," and the acts reviving 
or amending said act; and the attorney of the United States for such 
district shall defend against the same for the United States; and the 
case shall be adjudged as equity and justice may require, and if it shall 
appear to the court, upon satisfactory proof, that such claim has been 
so confirmed, and that the same, in whole or in part, remains unsatis- 
fied, the court shall decree accordingly and order certificates of location 



XC PUIJLIC LANDS. 

to be issued to the petitioners in the manner provided by an act of Con- 
gress approved January twenty-eighth, eighteen hundred and seventy- 
nine, entitled "An act defining the manner in which certain land-scrip 
may be assigned and located, or applied by actual settlers, and provid- 
ing for the issue of patents in the name of the locator or his legal rep- 
resentatives, which certificates shall be divisible, assignable, locatable, 
and patentable according to the provisions of said act of January twenty- 
eighth, eighteen hundred and seventy-nine. 

Sec. 222. The decree so rendered, whether for or against the United 
States, shall be final, unless the area or aggregate of the certificates of 
location claimed in the petition shall exceed, at a valuation of a dollar 
and a quarter an acre, the sum of five thousand dollars, in which case, 
if the decree be agaiust the United States, an appeal may be entered 
to the Supreme Court of the United States, and if it be against the 
petitioners, they may take an appeal directly to that court, as of right 
and course, without affidavit or security other than for costs ; and the 
appeal shall be adjudged de novo in the Supreme Court, as in other 
cases of appeals thereto in chancery, and as the principles of this act 
may require ; and the decision of the Supreme Court shall be final. 

Sec. 223. So mucli of the act of Congress approved June second, 
eighteen hundred and fifty-eight, chapter eighty-one, or of any other 
act of Congress, as authorizes executive officers of the United States, in 
their judgment and discretion, to allow indemnity locations, floats, 
scrip, or certificates of location, on behalf of confirmed private land- 
claims which come within the purview of this act, be, and the same is 
hereby, repealed. 



CHAPTER XIV. 

STATE SELECTIONS. 

Sec. 22-1. The several grants of public lands heretofore made to the 
several States shall be adjusted in accordance with the laws of Congress 
now in force; but the States which may hereafter be admitted iuto the 
Union shall be entitled only to such grants of lands as may be specifically 
provided for in their several enabling acts. 

Sec. 225. The lands appropriated by section one hundred and ten shall 
be selected within the same land district, in accordance with the following 
principles of adjustment, to wit : For each township or fractional town- 
ship containing a greater quantity of land than three quarters of an entire 
township, one section ; for a fractional township containing a greater 
quantity of land than one-half and not more than three-quarters of a 
township, three-quarters of a section : for a fractional township contain- 
ing a greater quantity of land than one-quarter and not more than one- 
half of a township, one-half section; and for a fractional township con- 
taining a greater quantity of land than one entire section and not more 
than one-quarter of a township, one quarter section of land. 

Sec. 22(i. It shall be the duty of the Commissioner of the General 
Land Office to cause patents conveying the legal title to be issued to 
the several States for all lands, not heretofore certified under existing 
laws and regulations, which have been or may hereafter be granted to 
them for any purpose whatever: Provided, That where grants of lands 
have been made to a State for a specific purpose, and such State shall 
have transferred its interest in the lands to any corporation or individ- 
ual, patents shall be issued to such corporation or individual on cotnpli- 



PUBLIC LANDS. XCI 

ance with the terms and conditions of the granting act ; but nothing 
herein contained shall be construed to revive or continue the provisions 
of any grant beyond the period fixed bylaw: Provided, That where 
lands have been heretofore certified without authority of law, or in ex- 
cess of the grant, the Commissioner of the General Land Office shall 
treat such certifications as absolutely null and void, and shall dispose 
of the lands covered thereby under the public land laws applicable 
thereto in the same manner and to the same extent as if no such unlaw- 
ful or excessive certifications had been made, but innocent purchasers 
under color of title from such illegal certifications shall, in the absence 
of valid adverse right, have a preference right to purchase from the 
United States at one dollar and twenty-five cents per acre. 



CHAPTER XV. 

BOUNTY LANDS. 

Sec. 227. All warrants for military bounty -lands which have been or 
may hereafter be issued under any law of the United States, and all 
valid locations of the same which have been or may hereafter be made, 
are declared to be assignable by deed or instrument of writing, made 
and executed according to such form and pursuant to such regulations as 
may be prescribed by the Commissioner of the General Land Office, so 
as to vest the assignee with all the rights of the original owner of the 
warrant or location. 

Sec. 228. The warrants which have been or may hereafter be issued 
in pursuance of law may be located according to the legal subdivisions 
of the public lands in one body upon any lands of the United States sub- 
ject to private entry at the time of such location at the minimum price. 
When such warrant is located on lands which are subject to entry at a 
greater minimum than one dollar and twenty-five cents per acre, the lo- 
cator shall pay to the United States in cash the difference between the 
value of such warrants at one dollar and twenty-five cents per acre and 
the tract of land located on. But where such tract is rated at one dol- 
lar and twenty-five cents per acre, and does not exceed the area speci- 
fied in the warrant, it must be taken in full satisfaction thereof. 

Sec. 229. In all cases of warrants for bounty-lands, issued by virtue 
of an act approved July twenty-seven, one thousand eight hundred and 
forty-two, and of two acts approved January twenty-seven, one thousand 
eight hundred and thirty-five, therein and thereby revised, and of two 
acts to the same intent, respectively, approved June twenty -six, eighteen 
hundred and forty-eight, and February eight, eighteen hundred and 
fifty-four, for military services in the revolutionary war, or in the war of 
eighteen hundred and twelve with Great Britain, which remained un- 
satisfied on the second day of July, eighteen hundred and sixty-four, it 
is lawful for the person in whose name such warrant issued, his heirs or 
legal representatives, to enter in quarter sections, at the proper local 
laud office in any of the States or Territories, the quantity of the public 
lands subject to private entry which he is entitled to under such war- 
rant. 

Sec. 230. All warrants for bounty-lands referred to in the preceding 
section may be located at any time in conformity with the general laws 
in force at the time of such location. 

Sec. 231. Each of the surviving, or the widow or minor children of 



XCII PUBLIC LA2tt)S. 

deceased, commissioned and non-commissioned officers, musicians, or 
privates, whether of regulars, volunteers, rangers, or militia, who per- 
formed military service in any regiment, company, or detachment, in the 
service of the United States, in the war with Great Britain, declared on 
the eighteenth day of June, eighteen hundred and twelve, or in any of 
the Indian wars since seventeen hundred and ninety, and prior to the 
third of March, eighteen hundred and fifty, and each of the commis- 
sioned officers who was engaged in the military service of the United 
States in the war with Mexico, shall be entitled to lands as follows : 
Those who engaged to serve twelve months or during the war, and act- 
ually served nine months, shall receive one hundred and sixty acres, 
and those who engaged to serve six months, and actually served four 
months, shall receive eighty acres, and those who engaged to serve for 
any or an indefinite period, and actually served one month, shall receive 
forty acres ; but wherever any officer or soldier was honorably discharged, 
in consequence of disability contracted in the service, before the expi- 
ration of his period of service, he shall receive the amount to which he 
would have been entitled if he had served the lull period for which he 
had engaged to serve. All the persons enumerated in this section who 
enlisted in the regular army, or were mustered in any volunteer com- 
pany for a period of not less than twelve months, and who served in the 
war with Mexico and received an honorable discharge, or who were killed 
or died of wounds received or sickness incurred in the course of such 
service, or were discharged before the expiration of tne term of service 
in consequence of wounds received or sickness incurred in the course of 
such service, shall be entitled to receive a certificate or warrant for one 
hundred and sixty acres of land : or at option Treasury scrip for one 
hundred dollars bearing interest at six per cent, per annum, payable 
semi-annually, at the pleasure of the Government. In the event of the 
death of any one of the persons mentioned in this section during service, 
or after his discharge, and before the issuing of a certificate or warrant, 
the warrant or scrip shall be issued in favor of his family or relatives ; 
first, to the widow and his children; second, his father; third, his 
mother; fourth, his brothers and sisters. 

Sec. 232. The persons enumerated in the preceding section received 
into service after the commencement of the war with Mexico, for less 
than twelve months, and who served such term, or were honorably dis- 
charged are entitled to receive a certificate or warrant for forty acres, 
or scrip for twenty-five dollars if preferred, and in the event of the death 
of such person during service, or after honorable discharge before the 
eleventh of February, eighteen hundred and forty-seven, the warrant or 
scrip shall issue to the wife, child, or children, if there be any, and if 
none, to the father, and if no father, to the mother of such soldier. 

Sec. 233. Where the militia, or volunteers, or State troops of any 
State or Territory, subsequent to the eigteenth day of June, eighteen 
hundred and twelve, and prior to March twenty- second, eighteen hun- 
dred and fifty-two, were called into service, the officers and soldiers 
thereof shall be entitled to all the benefits of section two thousand four 
hundred and eighteen of the llevised Statutes of the United States 
upon proof of length of service as therein required. 

Sec. 234. No person shall take any benefit under the provisions of the 
three preceding sections, if he has received, or is entitled to receive, any 
military land-bounty under any act of Congress passed prior to the 
twenty-second March, eighteen hundred and fifty-two. 

Sec. 235. The period during which any officer or soldier remained in 
captivity with the enemy shall be estimated and added to the period of 



PUBLIC LANDS. XCIII 

his actual service, and the person so retained in captivity shall receive 
land under the provisions of sections twenty-four hundred and eighteen 
and twenty-four hundred and twenty of the Revised Statutes of the 
United States, in the same manner that he would be entitled in case he 
had entered the service for the whole term made up by the addition of 
the time of his captivity, and had served during such term. 

Sec. 236. Every person for whom provision is made by sections 
twenty-four hundred and eighteen and twenty-four hundred and twenty 
of the Revised Statutes of the United States shall receive a warrant 
from the Department of the Interior for the quantity of land to which 
he is entitled ; and, upon the return of such warrant, with evidence of 
the location thereof having been legally made to the General Land- 
Office, a patent shall be issued therefor. 

Sec. 237. In the event of the death of any person, for whom provision 
is made by said sections twenty-four hundred and eighteen and twenty- 
four hundred and twenty, and who did not receive bounty-land for his 
services, a like warrant shall issue in favor of his widow, who shall be 
entitled to one hundred and sixty acres of land in case her husband was 
killed in battle ; nor shall a subsequent marriage impair the right of 
any widow to such warrant, if she be a widow at the time of making 
her application. 

Sec. 238. Each of the surviving persons specified in the classes enu- 
merated in the following section, who has served for a period of not less 
than fourteen days, in any of the wars in which the United States have 
been engaged since the year seventeen hundred and ninety, and prior to 
the third day of March, eighteen hundred and fifty-five, shall be entitled 
to receive a warrant from the Department of the Interior for one hun- 
dred and sixty acres of laud ; and, where any person so entitled has, 
prior to the third day of March, eighteen hundred and fifty five, re- 
ceived a warrant for any number of acres less than one hundred and 
sixty, he shall be allowed a warrant for such quantity of land only as 
will make in the whole, with what he may have received prior to that 
date, one hundred and sixty acres. 

Sec. 239. The classes of persons embraced as beneficiaries under the 
preceding section, are as follows, namely : 

First. Commissioned and non-commissioned officers, musicians, and 
privates, whether of the regulars, volunteers, rangers, or militia, who 
were regularly mustered into the service of the United States. 

Second. Commissioned and non-commissioned officers, seamen, ordi- 
nary seamen, flotilla-men, marines, clerks, and landsmen in the Navy. 

Third. Militia, volunteers, and State troops of any State or Territory, 
called into military service, and regularly mustered therein, and whose 
services have been paid by the United States. 

Fourth. Wagon- masters and teamsters who have been employed un- 
der the direction of competent authority, in time of war, in the trans- 
portation of military stores and supplies. 

Fifth. Officers and soldiers of the revolutionary war, and marines, 
seamen, and other persons in the naval service of the United States 
during that war. 

Sixth. Chaplains who served with the Army. 

Seventh. Volunteers who served with the armed forces of the United 
States in any of the wars mentioned, subject to military orders, whether 
regularly mustered into the service of the United States or not. 

Sec. 240. The following class of persons are included as beneficiaries 
under section twenty-four hundred and twenty-five of the Revised Stat- 



XCIV PUBLIC LANDS. 

utes of the United States, without regard tothe length of service ren- 
dered. 

First. Any of the classes of persons mentioned in the preceding sec- 
tion who have been actually engaged in any battle in any of the wars 
in which this country has been engaged since seventeen hundred and 
ninety, and prior to March third, eighteen hundred and fifty- five. 

Second. Those volunteers who served at the invasion of Plattsburgb, 
in September, eighteen hundred and fourteen. 

Third. The volunteers who served at the battle of King's Mountain, 
in the revolutionary war. 

Fourth. The volunteers who served at the battle of Nickojack against 
the confederate savages of the south. 

Fifth. The volunteers who served at the attack on Lewistown, in 
Delaware, by the British fleet, in the war of eighteen hundred and 
twelve. 

Sec. 241. In the event of the death of any person who would be enti- 
tled to a warrant, as provided in section twenty-four hundred and 
twenty -five of the Be vised Statutes of the United States, leaving a 
widow, or, if no widow, a minor child, such widow or such minor child 
shall receive a warrant for the same quantity of land that the de- 
cedent would be entitled to receive, if living on the third day of March, 
eighteen hundred and fifty-five. 

Sec. 242. A subsequent marriage shall not impair the right of any 
widow, under the preceding section, if she be a widow at the time of 
her application. 

Sec. 243. Persons within the age of twenty-one years on the third 
day of March, eighteen hundred and fifty-five, shall be considered minors 
within the intent of section twenty-four hundred and twenty-eight of 
the Eevised Statutes of the United States. 

Sec. 244. Where no record evidence of the service for which a war- 
rant is claimed exists, parol evidence may be admitted to prove the ser- 
vice performed, under such regulations as the Commissioner of Pensions 
may prescribe. 

Sec. 245. Where certificate or a warrant for bounty-land for any less 
quantity than one hundred and sixty acres has been issued to any officer 
or soldier, or to the widow or minor child of any officer or soldier, the 
evidence upon which such certificate or warrant was issued shall be re- 
ceived to establish the service of such officer or soldier in the applica- 
tion of himself, or of his widow or minor child, for a warrant for so 
much land as may be required to make up the full sum of one hundred 
and sixty acres, to which he may be entitled under the preceding sec- 
tion, on proof of the identity of such officer or soldier, or, in case of his 
death, of the marriage and identity of his widow, or, in case of her 
death, of the identity of his minor child. But if, upon a review of such 
evidence, the Commissioner of Pensions is not satisfied that the former 
warrant was properly granted, he may require additional evidence, as 
well of the term as of the fact of service. 

Sec. 246. When any company, battalion, or regiment, in an organ- 
ized form, marcheil more than twenty miles to the place where they were 
mustered into the service of the United States, or were discharged more 
than twenty miles from the place where such company, battalion, or regi- 
ment was organized, in all such cases, in computing the length of serv- 
ice of the officers and soldiers of any such company, battalion, or regi- 
ment, there shall be allowed one day for every twenty miles from the 
place where the company, battalion, or regiment was organized, to the 
place where the same was mustered into the service of the United 



PUBLIC LANDS. XCV 

States, and one day for every twenty miles from the place where such 
company, battalion, or regiment was discharged, to the place where it 
was organized, and from whence it marched to enter the service, pro- 
vided that such march was in obedience to the command or direction of 
the President, or some general officer of the United States, command- 
ing an army or department, or the chief executive officer of the State 
or Territory by which such company, battalion, or regiment was called 
into service. 

Sec. 247. The provisions of all the bounty -land laws shall be extended 
to Indians, in the same manner and to the same extent as to white 
persons. 

Sec. 248. Where a pension has been granted to any officer or soldier, 
the evidence upon which such pension was granted shall be received to 
establish the service of such officer or soldier in his application for 
bounty-land ; and upon proof of his identity as such pensioner, a war- 
rant may be issued to him for the quantity of land to which he is enti- 
tled ; and in case of the death of such pensioned officer or soldier, his 
widow shall be entitled to a warrant for the same quantity of land to 
which her husband would have been entitled, if living, upon proof that 
she is such widow ; and in case of the death of such officer or soldier, 
leaving a minor child and no widow, or where the widow may have de- 
ceased before the issuing of any warrant, such minor child shall be 
entitled to a warrant for the same quantity of land as the father would 
have been entitled to receive if living, upon proof of the decease of father 
and mother. But if, upon a review of such evidence, the Commissioner 
of Pensions is not satisfied that the pension was properly granted, he 
may require additional evidence as well of the term as of the fact of 
service. 

Sec. 240. All sales, mortgages, letters of attorney, or other instru- 
ments of writing, going to affect the title or claim to any warrant issued, 
or to be issued, or any land granted, or to be granted, under the pre- 
ceding provisions of this chapter, made or executed prior to the issue 
of such warrant, shall be null and void to all intents and purposes 
whatsoever ; nor shall such warrant, or the land obtained thereby, be 
in any wise affected by, or charged with, or subject to, the payment of 
any debt or claim incurred by any officer or soldier, prior to the issuing 
of the patent. 

Sec. 250. It shall be the duty of the Commissioner of the General 
Land Office, under such regulations as may be prescribed by the Secre- 
tary of the Interior, to cause to be located, free of expense, any warrant 
which the holder may transmit to the General Land Office for that pur- 
pose, in such State or land district as the holder or warrantee may 
designate, and upon good farming land, so far as the same can be ascer- 
tained from the maps, plats, and field-notes of the surveyor, or from any 
other information in the possession of the local office, and, upon the 
location being made, the Secretary shall cause a patent to be transmitted 
to such warrantee or holder. 

Sec. 251. No person who has been in the military service of the United 
States shall, in any case, receive a bounty-land warrant if it appears by 
the muster-rolls of his regiment or corps that he deserted or was dishonor- 
ably discharged from service. 

Sec. 252. When a soldier of the Regular Army, who has obtained a 
military land-warrant, loses the same, or such warrant is destroyed by 
accident, he shall, upon proof thereof to the satisfaction of the Secre- 
tary of the Interior, be entitled to a patent in like manner as if the war 
rant was produced. 



XCVI PUBLIC LANDS. 

Sec. 253. Iu all cases of discbarge from the military service of the 
United States of any soldier of the Regular Army, when it appears to 
the satisfaction of the Secretary of War that a certificate of faithful 
services has been omitted by the neglect of the discharging officer, by 
misconstruction of the law, or by any other neglect or casualty, such 
omission shall not prevent the issuing of the warrant and patent as in 
other cases. And when it is proved that any soldier of the Regular 
Army has lost his discharge and certificate of faithful service, the Sec- 
retary of War shall cause such papers to be furnished such soldier as 
will entitle him to his land-warrant and patent, provided such measure 
is justified by the time of his enlistment, the period of service, and the 
report of some officer of the corps to which he was attached. 

Sec. 254. Whenever it appears that any certificate or warrant, issued 
in pursuance of any law granting bounty-land, has been lost or de- 
stroyed, whether the same has been sold and assigned by the warrantee 
or not, the Secretary of the Interior is required to cause a new certifi- 
cate or warrant of like tenor to be issued in lieu thereof; which new 
certificate or warrant may be assigned, located, and patented in like 
manner as other certificates or warrants for bounty-land are now author- 
ized by law to be assigned, located, and patented ; and in all cases 
where warrants have been, or may be, re-issued, the original warrant, 
in whose-ever hands it may be, shall be deemed and held to be null and 
void, and the assignment thereof, if any there be, fraudulent ; and no 
patent shall ever issue for any land located therewith, unless such pre- 
sumption of fraud in the assignment be removed by due proof that the 
same was executed by the warrantee in good faith and for a valuable 
consideration. 

Sec. 255. The Secretary of the Interior is required to prescribe such 
regulations for carrying the preceding section into effect as he may deem 
necessary and proper in order to protect the government against impo- 
sition and fraud by persons claiming the benefit thereof; and all laws 
and parts of laws for the punishment of frauds against the United States 
are made applicable to frauds under that section. 

Sec. 256. In all cases where an officer or soldier of the revolutionary 
war, or a soldier of the war of eighteen hundred and twelve, was entitled 
to bounty-land, has died before obtaining a patent for the laud, and 
where application is made by a part only of the heirs of such deceased 
officer or soldier for such bounty-land, it shall be the duty of the Secre- 
tary of the Interior to issue the patent in the name of the heirs of such 
deceased officer or soldier, without specifying each ; and the patent so 
issued in the name of the heirs, generally, shall inure to the benefit of 
the whole, in such portions as they are severally entitled to by the laws 
of descent in the State or Territory where the officer or soldier belonged 
at the time of his death. 

Sec. 257. When proof has been or hereafter is filed in the Pension- 
Office, during the life-time of a claimant, establishing, to the satisfaction 
of that office, his right to a warrant for military services, and such war- 
rant has not been, or may not be, issued until after the death of the 
claimant, and all such warrants as have been heretofore issued subse- 
quent to the death of the claimant, the title to such warrants shall vest 
in his widow, if there be one, and if there be no widow, then in the heirs 
or legatees of the claimant; and all military bounty-land warrants issued 
pursuant to law shall be treated as personal chattels, and may be con- 
veyed by assignment of such widow, heirs, or legatees, or by the legal 
representatives of the deceased claimant, for the use of such heirs or 
legatees only. 



PUBLIC LANDS. XCVII 

Sec. 258. The legal representatives of a deceased claimant for a 
bounty-land warrant, whose claim was filed prior to his death, may file 
the proofs necessary to perfect such claim. 

Sec. 259. Where an actual settler on the public lands has sought, or 
hereafter attempts, to locate the land settled on and improved by him, 
with a military bounty-land warrant, and where, from any cause, an 
error has occurred in making such location, he is authorized to relin- 
quish the land so erroneously located, and to locate such warrants upon 
the land so settled upon and improved by him, if the same then be va- 
cant, and if not, upon any other vacant land, on making proof of those 
facts to the satisfaction of the land-officers, according to such rules and 
regulations as may be prescribed by the Commissioner of the General 
Land Office, and subject to his final adjudication. 



CHAPTER XVI. 

MISCELLANEOUS PROVISIONS. 

Sec 260. The Secretary of the Interior is authorized to permit the 
purchase, with cash or military bounty -land warrants, of such lands as 
may have been located with claims arising under the seventh clause of the 
second article of the treaty of September thirty, eighteen hundred and 
fifty-four, at such price per acre as he deems equitable and proper, but 
not at a less price than one dollar and twenty-five cents per acre; and 
the owners and holders of such claims in good faith are also permitted 
to complete their entries and to perfect their titles under such claims 
upon compliance with the terms above mentioned ; but it must be shown 
to the satisfaction of the Secretary of the Interior that such claims are 
held by innocent parties in. good faith, and that the locations made 
under such claims have been made in good faith and by innocent holders 
of the same. 

Sec. 261. In all cases in which land has heretofore or shall hereafter 
be given by the United States for military services, warrants shall be 
granted to the parties entitled to such land by the Secretary of the In- 
terior ; and such warrants shall be recorded in the General Land Office 
in books to be kept for the purpose, and shall be located as is, or may 
be, provided by law, and patents shall afterwards be issued accord- 
ingly. 

Sec. 262. The gold coins of Great Britain and other foreign coins shall 
be received in all payments on account of public lands, at the value 
estimated annually by the Director of the Mint, and proclaimed by the 
Secretary of the Treasury, in accordance with the provisions of section 
thirty -five hundred and sixty-four of the Revised Statutes of the United 
States, title " The Coinage." 

Sec. 263. In all cases of an application, entry or location hereafter 
made, of a tract of land not intended to be applied for, entered or located, 
by a mistake of the true numbers of the tract intended to be applied 
for, entered or located, where the certificate of the original applicant, 
purchaser or locator has not been assigned, or his right in any way 
transferred, the said applicant, purchaser or locator, or, in case of his 
death, the legal representatives, not being assignees or transferees, may 
file his or their affidavit, with such additional evidence as can be pro- 

t cured, showing the mistake of the numbers of the tract intended to be 
applied for, entered or located, and that every reasonable precaution 



XCVIIl PUBLIC LANDS. 

and exertion had been used to avoid the error, with the Register of the 
land district within which such tract of land is situated, who shall 
transmit the evidence, together with his written opinion to the Commis- 
sioner of the General Land Office ; and if the said Commissioner shall 
be entirely satisfied that the mistake has been made, and that every 
reasonable precaution and exertion had been made to avoid it, he is 
authorized to change the application, entry or location, and to transfer 
any payment made to that intended to be applied for, entered or located, 
if unsold ; bat, if sold, to any other tract liable to similar application, 
entry or location j but nothing herein contained shall affect the right of 
third persons. 

Sec. 264. The provisions of the preceding section shall extend to all 
cases where patents may hereafter issue, but upon condition, however, 
that the party concerned surrenders his patent to the Commissioner of 
the General Land Office, with a relinquishment of title thereon, executed 
in a form to be prescribed by the Secretary of the Interior ; and upon 
like surrender of any patent, with similar relinquishment of unincum- 
bered title, the Commissioner of the General Land Office is authorized 
to reissue said patent, when necessary or proper to correct any error in 
description, or in names of parties, or in other material particular. 

Sec. 265. Whenever any reservation of public lands is released by 
proper authority, said lands shall thereafter be subject to disposition, 
under the same laws and conditions, as other public lands of like classi- 
fication, but at a price to be fixed by the Commissioner of the General 
Land Office. 

Sec. 266. When, from any cause whatsoever, the United States here- 
after refuse to issue patent, or other final evidence of title, to an appli- 
cant for any tract of public land, the Secretary of the Interior is author- 
ized to repay to the applicant, or his legal representatives, the sum of 
money which was paid therefor, or in connection therewith, whether by 
way of fees, costs, or purchase money, out of any money in the Treasury 
not otherwise appropriated ; and the Secretary is similarly authorized 
to repay excess payments which may have been, or shall be, illegally 
exacted. The appropriation herein provided for shall be deemed a per- 
manent specific appropriation. 

Sec. 267. Where the moneys, derived from the payments mentioned 
in the preceding section, have been invested in any stocks held in trust, 
or have been paid into the Treasury to the credit of any trust fund, it 
shall be lawful, by the sale of such portion of such stocks, as may be 
necessary for the purpose, or out of such trust fund, to repay the pur- 
chase money to the parties entitled thereto. 

Sec. 268. Whenever proof shall be made, to the satisfaction of the 
Secretary of the Interior, that innocent parties have paid the fees or 
commissions, or excess payments, required upon the location of claims 
under section 2306 of the Revised Statutes of the United States, which 
said claims were, after such location, proved to be fraudulent and void, 
and the entries or locations made thereon canceled, the Secretary of the 
Interior is authorized to repay to such innocent parties the fees, or com- 
missions, or excess payments paid by them, out of any money in the 
Treasury not otherwise appropriated. 

Sec. 209. Where any actual settler shall have paid the double mini- 
mum rate for any lands on account of said land being, at the time of 
payment, within the granted or indemnity limits of a railroad grant, 
or the withdrawal for the same, and the location for the line of the road 
is subsequently changed, so that such lands are thrown outside of said 
limits, or it is discovered, by adjustment of the withdrawal, that such 



PUBLIC LANDS, . XCIX 

lands are not within said limits, or said railroad grant shall be forfeited 
to the United States, and restored to the public domain, for failure to 
build such railroad, the Secretary of the Interior is authorized to repay 
to such actual settlers the sums paid by them in excess of the single 
minimum rate for public lands. 

Sec. 270. Where patents for public lands have been or may be issued, 
in pursuance of any law of the United States, to a person who had died, 
or who hereafter dies, before the date of such patent, the title to the 
land designated therein shall inure to and become vested in the heirs, 
devisees, or assignees of such deceased patentee, as if the patent had 
issued to the deceased person during life. 

Sec. 271. All scrip heretofore issued in pursuance of laws and re- 
ceivable in payment of pre-emption or commuted homestead entries, 
may hereafter be located by the holders thereof, upon any public lands 
of the United States subject to entry under the homestead, irrigation, 
or pasturage laws : Provided, That said location shall be made within 
two years from the passage of this act. 

Sec. 272. Where a party in possession of any part of the public 
lands of the United States fails, refuses, or omits to protect or evidence 
his right of possession, as required by the laws of the United States, and. 
who has no claim of title under acts of Congress or treaty stipulation, 
the said land shall be deemed vacant public lands, and as such subject 
to the occupation and claim of any other person seeking to acquire 
title under any of the public land laws. 

Sec. 273. It shall be the duty of the Commissioner of the General 
Land Office to take the requisite measures to ascertain all cases properly- 
falling within the act of March 3, 1807, entited "An act to prevent set- 
tlements being made on lands ceded to the United States until authorized 
by law," which act is hereby made part of this section, and he shall 
cause the same to be enforced in favor of parties seeking to acquire title 
under the public land laws. 

Sec. 274. All navigable rivers, within the territory occupied by the 
public lands, shall remain and be deemed public highways ; and in all 
cases where the opposite banks of any streams not navigable belong to 
different persons, the stream and the bed thereof shall become common 
to both. 

Sec. 275. The right of way for the construction of highways over 
public lands, not reserved for public uses, is hereby granted ; and all 
patents for public lands hereafter sold or granted by the United States 
shall contain a clause, reserving to the public an easement for highways. 

Sec. 276. Where the United States have heretofore granted a special 
right of way over the public lands to any railroad company, and the 
same has not been fixed by actual location upon the earth's surface, to- 
gether with bona fide occupation of the line located, the same shall here- 
after be subject to all the conditions, limitations, and restrictions of the 
act entitled "An act granting to railroads the right of way through the 
public lands of the United States,' 7 approved March 3, 1875 ; or if said 
special right of way has been heretofore fixed by location and occupation 
only in part, the uulocated and unoccupied part shall hereafter be sub- 
ject as above prescribed. 

Sec. 277. When a land grant to any railroad company falls in whole 
or in part upon lands classified as irrigable or pasturage lands, the Sec- 
retary of the Interior is hereby authorized upon the application of said 
railroad company, and when in his judgment the public interests will be 
subserved thereby, to exchange alternate reserved sections of the public 
lands for sections granted to said railroads so as to consolidate the re- 



O PUBLIC LANDS. 

spective ownerships of the United States and of the company in sepa- 
rate blocks of not less than four contiguous sections each, and he is 
authorized to cause the requisite patents to be executed : Provided, That 
said railroad company shall first file with him the proper conveyances 
to the United States of the granted sections intended to be exchanged, 
with satisfactory proof that the title thereto is free and unincumbered 
in said company. 

Sec. 278. The Commissioner of the General Land Office, under the 
directions of the Secretary of the Interior, is authorized to enforce and 
carry into execution, by appropriate regulations, every part of the pro- 
visions of this title not otherwise specially provided for. 



CHAPTER XVII. 

REPEAL PROVISIONS. 

Sec. 279. The foregoing sixteen chapters embrace the statutes of 
the United States, general and permanent in their nature, and applica- 
ble to the survey and sale of the public lands in force on the day 
of , A. D. 

Sec. 280. All acts of Congress passed prior to said 
A. I). , any portion of which is embraced in any section 

of the foregoing laws, are hereby repealed, and the section applicable 
thereto shall be in force in lieu thereof ; all parts of such acts not con- 
tained in the foregoing laws, having been repealed or superseded by 
subsequent acts or not being general and permanent in their nature : 
Provided, That the incorporation into the foregoing laws of any general 
and permanent provision, taken from an act making appropriations 
or from an act containing other provisions of a private, local, or tem- 
porary character shall not repeal or in any way affect any appropriation, 
or any provision of a private, local, or temporary character, contained 
in any of said acts, but the same shall remain in force ; and all acts of 
Congress passed prior to said last named day, no part of which are em- 
braced in the foregoing laws, shall not be affected or changed by its 
en act me ut. 

Sec. 281. The repeal of the several acts embraced in the foregoing 
laws shall not affect any act done, or any right accruing or accrued be- 
fore said repeal. 

Sec. 282. The arrangement and classification of the several sections 
of the foregoing laws have been made for the purpose of a more conven- 
ient and orderly arrangement of the same, and therefore no inference 
or presumption of a legislative construction is to be drawn by reason of 
the chapter under which any particular section is placed ; nor shall any 
part of this act be construed to affect the term of service of present 
officers, excepting those herein specifically abolished. 



LETTERS AND TESTIMONY 



TAKEN BY 



THE PUBLIC LANDS COMMISSION. 



ci 



lafailel 
jquent 
las dis- 
1 to the 
articu- 

Ssigns, 
cators 
tmost 
he ex- 



laim 



[ugh 
lere 



re 



;.l 



Testimony of John Wasson, United States surveyor-general, Tucson, Ariz., relative to agri- 
cultural and timber lands and lode claims. 

The questions to which the following answers are given will be found on sheet facing 
page 1. 

United States Surveyor-General's Office, 

Tucson, Ariz., September 30, 1879. 
To the Fublic Land Commission, Box 585, Washington, D. C. : 

Gentlemen : Your circular, accompanied by a citation of the law under which you 
are acting and followed by numerous interrogatories, has been received, as has also a 
package for distribution, and the request complied with. 

As I am quite sure the Commission will be troubled with too many replies and sug- 
gestions rather than with too few, I will confine my observations to a small number 
of your queries. Beginning with your first series of ten, I have to say, viz : 

1. John Wasson, Tucson, Ariz., surveyor-general. 

2. Nine and one -half years. 

3. Not under any law of the United States, except mere possessory rights to mining 
claims. 

4. Over eight years' experience as United States surveyor-general. 

6. As a partial answer to this enticing question, I will say that the "desert land 
act" should be absolutely repealed and no attempt made to amend it. The law is a 
positive damage to nearly every one who attempts to acquire land under it in a prac- 
tical and honest way. In most instances it simply operates to get twenty-five cents 
per acre from poor men for nothing, and tends to bring land legislation into contempt 
among those most in need of public encouragement, because practical settlers and 
cultivators. 

7. Narrow and rich valleys, with streams of more or less volume ; mesa or table land, 
mostly covered with grasses, upon which cattle and other stock fatten at all seasons, 
with considerable inferior timber useful for fuel, and some springs and small streams, 
but upon which reliance for water is in wells ; mountain land containing minerals of 
nearly all kinds known to the commerce of the world, notably silver and gold, copper 
and lead, and iron, all in practically unlimited quantities, and timber valuable for 
all purposes required in mining, agriculture, and building in general, and mostly covered 
with rich grasses. The mountain and some of the mesa lands are cut by deep canons, 
and considerable areas of the mountains are precipitous and rocky, with little vegeta- 
tion of any kind. 

8. As I understand this, it will be practically treated in next. 

9. Would continue present system of surveys, into sections, of all rich bottom or 
valley lands, and sell in one-hundred-and-sixty-acre tracts at present price ; would 
survey mesa or table land into whole townships, making corners of such solidity and 
with such bearing that they would be easily found a century hence, and then sell the 
land in quarter, half, and whole townships at a nominal price, with reasonable and 
practicable conditions concerning actual occupation, improvement, development of 
water, <fcc, compelling undoubted proof of strict compliance. At present, under exist- 
ing legislation, the poor cannot properly turn this land to any considerable account, 
and the rich will not. Not one quarter section in one hundred is alone of any value to 
anybody, and it is hardly possible more ever will be, under present laws. It is absurd 
to hold these lands for occupation under the homestead or pre-emption acts, or for 
"homes for the homeless'" or "lands for the landless," in the demagogic sense these 
expressions seem to have been used. , The land bearing timber of commercial value 
I would survey into sections, sell in quarter sections, without conditions, after due 
public notice, at public auction, to the highest bidder, and thereby induce the pur- 
chasers to protect the timber from wastage and perhaps lead many to protect and even 
cultivate the young growth. 

Actual observation of government protection of timber by the efforts of special 
agents leads me to these clear conclusions, viz : That in too many instances these 
agents boldly extort money or do notresist the temptations to be bribed, to the mani- 

lLC 

■ 



f herds lie improved and a better beef produced by having 

I' supply of stork water iii vour section? 

IV sheep are equivalent to one beef! 

,:,.. increased or diminished on lands pastured with sheepl 

f any, exist between slier], and cattle owners, growing out of the 
public] Is, or from any other cause 1 . 

nximate number of sheep ami cattle in your county . Ami in 
[they herded .' 
[gestions have you to offer in regard to the disposition ot the public 

|uhle in ascertaining the corners of the surveyed public lands in 



■ land is fchei 



TIMBER. 

in your seeti< 



and what i 



character of (lie 



imber, if any, is planted in your section, and what is regarded as 

the time of its growth! ' 
i dispose of the public timber lands? State whether by sale, by 
Give details of your plan and the reasons therefor, stating particu- 
bf tract, and what limitations, if any, should be imposed upon such 

[not, classify the different kinds of forest lauds, whether in manner 

i of tracts ? 
ire felled in your region, is or is there not a second growth of 
■ its character, time of growth, and any like information. 

of the origin of forest fires, their extent, destructiveuess, 

as to depredations upon the public timber, whether for 
, use for mineral, building, agricultural, or other purposes? 
'depredations, unnecessary waste occasioned thereby, and 
necessary to limit or prevent such depredations, 
items as 'to the cutting of public timber by individuals or 
mlarly as to the ownership of felled timber, 
lie timber laws be more efficiently executed if their admin- 
rests were placed within the jurisdie- 



I.ODK CLAIMS. 



i have you had, and where, and in what capacity, in the business 
■surveying, and mine litigation? 
i, if any, in the United Statcslaws, ihciroperation and administration 
le claims, do you know, either from your own experience or from 



tate 



or apex of a vein or lode '. ( 'an or cannot 
■ection of the dip always be determined iu 



understand 
ic course, an 
s of the vein 

intended rights of a discoverer properly defined and protected by 
claim under the existing laws, of which the foregoing terms are 

experience and knowledge has, or has not, litigation and injustice 

impossibility of determining the above points? 

own of two seams, parallel or otherwise, of the same outcrop being 

it parties giving rise to contest? 

h a contest have you known of the original locator being cut off in 
locator .' 

t the outcrops of lodes often wider than the legal width of claims, 
1 by tho United -States, State, Territorial, or local district regula- 

I outcrops of 
he side line 
•lice under 



lodes sometimes so deviate from a straight line 

of permitting lode locations of alleged lodes on 
intage or disadvantage of the discoverers of 



■r, is the sole basis of the paper title for a minine 
compliance with the varying customs of iumiruer' 
preliminary acts upon such claims, state whether" 



10 if \ on the outcrop of a true lode, makes a location and B locates a parallel 
claim outside the side lines of A's tract, but over the dip ot As lode-B's s.ibsrq,,,,,, 
|„a on being .,„ an alleged lode but really on barren ground-can B. who ] la ' 8 a J 

,.,.v.r-d nothing, el I , he. itle of A. 1 he d.scoveivr ot a t rue ode, and ,mf dun, to the 

costand inconvenience of an expensive litigation .' State instances and give partieu! 

'"l^Are orarenot a large majority of the discoverers of rich veins or their aasign8 

often burdened with costly litigation 1<> defend then r.ghts trom subsequent l,„„ tw ' 

: , ..':.. ;,„ |j, rr ,„.i,diborhood .' And in such cases is or is not the legal attack „,„„, 

o't'tJ'l'di,',':; 'd to H.e.e.r, >.,,, ,,f the dip of the lode which has passed beyond the'ex! 
tenor hues ot ^.'^'.'j.;"^, Variety and complexity of mineral deposits in rock in place 
is it' or is it not in your judgment, possible to retain in the Unite. 1 States miner,! 
laws'a provision by which locators can follow the dip of their claims outside their side! 
lines without provoking litigation i 

15 Have, vou ever taken part m organizing a local mining district? If s0 8tat 
fully where 'it was done, by how many parties, and whether necessarily actual miners 
or citizens. What officers were elected, and their duties ? What books of record p ro 
vidcel, and their object? ,...,,.,. , , .. 

16. State generally the mode ot originally taking up and locating a mineral claim 
undermining customs and I he cftcct ot a record of such location? 

17. Is that record capable ot subsequent amendment ; and. it so, how ? 

is! Within your knowledge, have mining titles been disturbed or litigated through 
fraudulent manipulation or destruction of these records? If so, what security is | \ H ? n , 
against such frauds? 

19. Calling your attention to the fact that a copy ot the certificate of location <><, 
certified by the local mining recorder, is the sole basis of the paper title for , 
claim, under existing law, and that < 
able mining districts constitutes the " 

in your opinion, all mining district laws, customs, and records could advantageously 
be 'abolished as to future location, and the initiation of record title be placed exclu- 
sively with the United States land officers. 

20. Calling your attention to the fact that under present laws an adverse claim in 
proper form and seasonably filed, suspends the administration of the mineral laws' hy 
the raited States land officers, and transfers the jurisdiction to the courts of Ian hot'h 
State and United States, please state whether, in your opinion, the adjustment of con- 
troversies concerning mineral lands prior to issue of patent should not be left ahso- 
lutely to the United States laud officers, in tho same manner as contests under all 
other land laws. 

21. If you consider it desirable to retain the leading features of the United States 
mining laws, what amendments, if any, would you suggest to remedy any defects which 
your experience or observation has detected? If, on tho contrary, you believe I hat, 
the practice of following the dip beyond the side line of a claim is incompatible wiih 
sal isfictory administration, what method of location -would you suggest? 

22. Ought there not to be a limitation as to a possessory title under the mineral laws 
and should not locators he compelled, on penalty of forfeiture, to acquire the title by 
purchase from the government within some reasonable time? If so, what would he 
your idea of the time ? 

PLACER CLAIMS. 

1. What proportion of the lauds in your section are mineral, and what is tho nature 
of the mineral deposits ? 

2. Are you familiar with the practical operations of the United States mining laws? 
If so, state how and to what extent. 

3. From your personal experience, please state the time and expense of procuring a 
mineral title, whether possessory or by patent, both with and without contest. 

4. State your knowledge of the experience of other parties upon the same points. 

5. Within your practical experience, are the existing mining laws as to placer claims 
defective or otherwise? 

(i. If defective, state in what particulars; having especial reference to tho facts of 
original location under local customs or laws ; the shape and size of such claims; their 
occupancy and development; the. opportunities for consolidating two or more claims 
in one person by purchase ; what evidence of the chain of title is required ; what use 
is made of such claims other than actual working, if any; and what is the general 
character of the litigation relative to these placer claims. 

7. Within your knowledge, are titles obtained under the placer law for non-mineral 
lands ; and, if so, state instances. 

8. Within your knowledge, has the placer law been used to obtain titles to lode 
claims ? If so, state instances. 

9. Do you know valuable placer lands which are nn worked because the outlets are 
controlled by claimants under other than mineral titles ? If so, state instances. 



Z riJBLIC LANDS. 

fest injury and disgrace of the public service, without either protecting the timber or 
rightfully punishing trespassers, and impresses all fair-minded and, at the same time, 
well-informed men with a spirit of opposition to, and of even revenge upon, i»he 
unfaithful officials, which raabs it verj difficult and disagreeable for honest officers 
to perform efficient service. Provide an honest, ready way to procure timber laud by 
purchase, and you will, in myjudgmenl , most thoroughly protect unsold timber, insure 
the best economy in its use in g< sieral, and most certainly encourage its reproduction 

undi::: head of "agriculture." 
i 

> 1. Any true report on New Mexico will be true as to Arizona. 

2. Same as above. 
- 3. Crops are not certain every year in any portion without irrigation. 

4. No reliable answer can be given, for not one-fourteenth of the area of Arizona 
has been surveyed, but the proportion must always depend upon the supply of water. 
Millions of acres of table lands would produce crops with plenty of water ; and the 
truth is that with a perfectly economic and, of course, scientific system of irrigation 
there is hardly water enough in running and surface streams to produce crops on all 
the rich valley land. 

5. Every kind grown in the temperate zone, including many of the fruits and fiber 
and root products of the tropics., 

13. Yes ; see answer to question 9. 

14. Yes ; see answer to question 9. 

28. Yes. Surveys have been confined to the best lands, embracing springs and 
streams. Cattle naturally roam over such land, and they as naturally paw and other- 
wise rake fresh turned-up earth, and in some sections, to my own knowledge, where 
the most thorough work was done and conscientious attention was given to building 
corners with posts in dirt mounds, cattle closely followed the surveyors and almost 
obliterated mounds and jfits. Then, in the valleys, the bearing trees are often taken 
by wood-cutters, who are mostly ignorant of what they are doing, and by campers gen- 
erally. Indians and Mexicans pull up the posts for fuel. Other causes might easily 
be given. If more attention were required to the solid establishment of township 
corners with careful bearings, and in the open, smooth, grass plains the section corners 
be marked by some imperishable substance, planted at least two feet deep, the public 
would be much better served than now. 

UNDER HEAD OF "TIMBER." 

1. Impossible to approximate quantity without a careful inspection of mountains 
and canons hundreds of miles in area. The timber of the mountains embraces pine 
and fir of commercial value, and oak, cedar, juniper, ash, walnut, wild cherry, and 
other varieties, of more or less value for building, but mainly for fuel. The rich val- 
ley land is mostly covered with mesquite, palo verde, and cottonwood, and the mes- 
quite is abundant and the best fuel of all the timbers. Its abundance in valleys may 
be correctly inferred from the statements that it is the only fuel used in Tucson, that 
the town is perhaps two centuries old, and that this wood is yet plentiful within sight 
of the town, both north and south. East and northeast of Prescott there are bodies 
of excellent pine, interspersed with fir and other kinds, extending continuously from 
fifty to over one hundred miles over mountains and high, rocky, and grassy table land; 
and in the canons and near the summits of all the mountains in eastern, southeastern, 
and southern Arizona, east of 111° longitude, there is piue timber of excellent quality 
for all kinds of building, including quartz-mills. The mesa or table land contains 
considerable scrub oak, cedar, juniper, and other inferior varieties, of much value, but 
almost exclusively for fuel. 

2. Very little is planted. Cottonwood, willow, and ash are the kinds I have ob- 
served. Cottonwood is preferred, and the time of its growth evidently depends upon 
the size required or desired. 

3. See reply to No. 9 (page 4 this letter) in first series of your questions. 

7. Substantially answered in No. 9, first series, on page 4 of this letter. 

8. No customs of which I am aware. Men in want of timber for their own use or 
sale generally hunt till they find it to suit their purposes and take it. The only pro- 
tection they have from others is in the ownership of a costly private road, over which 
public sentiment justifies them in oxcludiug travel or traffic in general and particular. 
To procure lumber at rates within any reasonable price private enterprise of this kind 
must be encouraged, otherwise lumber would have for the most part to be imported, 
or each person in want of boards take a saw-mill or whip-saw and go to the mountains, 
saw, and haul it himself — a practically impossible way. 

9. Yes; vastly better executed than by special agents. District land officers mostly 
have local interests and are actual residents, and their reputation and good policy are 



PUBLIC LANDS & 

combined in their favor; but the best protection as well as encouragement to growth 
of timber will be found, in my opinion, in transferring as speedily as possible the title 
to timber-bearing lands from government to individuals. 

UNDER HEAD OF "LODE CLAIMS." 

1. As surveyor-general. No litigation. 

2. Answered, in following replies. 

4. The highest point at which the ore or rock is found " in place," or between the- 
walls of the vein, and not a "blow out," or part of ledge broken down outside of the 
walls. The " top or apex," in my view, is often not found until after costly and ex- 
tensive explorations. 

5. Section 2 of the mining act of May 10, 1872, provides that "no location of a mining 
claim shall be made until the discovery of the vein or lode within the limits of the 
claim located." If this provision of law were fully complied with, all rights of a dis- 
coverer can be fully protected under existing law. 

11. Unquestionably it works to their disadvantage, and if the law were rightly 
enforced (as per section 2), no such locations would have a moment's consideration or 
standing before any tribunal or officer. 

13. Yes, and the "legal attack" is aimed at the pocket of the honest claimant 
although the approach may be by way of the said " dip." 

14. Yes, so as to not provoke honest litigation ; but my observation of over fifteen 
years among lode mines convinces me that no law that the ingenuity of man can 
devise will prevent blackmailing litigation, if not in the respect referred to, in some 
other. 

16. The mode generally adopted or followed throughout Arizona is that prescribed 
by the mining act of May 10, 1872, and the General Land Office regulations there- 
under. 

17. In my view, it is capable of lawful amendment, viz : A claimant in undisputed 
possession finds the record of location incomplete or wanting in lawful requirements. 
He relocates by reciting in his notice the fact of his original location and continued 
and undisputed possession ; that the new location is made for the sole purpose of per- 
fecting the original one and to meet the requirements of law and regulations, &c, and 
then have said notice duly recorded. Thereafter abstracts of title would show two 
locations, with the reasons therefor, by the original locators or their lawful grantees, 

19. Emphatically, yes. To lode claims the same law and regulations should apply 
in all parts of the United States, and all local, State, Territorial, and district laws 
should be wiped out by an act of Congress which should prescribe, with all the clear- 
ness the English language is capable oi,just what each claimant or locator should do 
and perform from the first act of location to the receipt of patent. 

20. Emphatically and unreservedly, yes. An honest claimant contemplates with 
horror and despair in about equal proportions a contest which involves an array of 
attorneys, witnesses, and jurors, with their attendant demands, and without hope that 
after all demands are met the merits of his case will have little or no weight in mak- 
ing up the verdict. 

21. I would retain all the provisions of the mining act of May 10, 1872, which expe- 
rience has proven suitably adapted to acquiring title to lode claims. I would retain 
the old structure but cut off and build on. The public is familiar and content, so far 
as I have heard, with much of the act. I will offer but few suggestions in detail. I 
would retain the provisions requiring end lines of claims to be parallel in all cases 
wherein the ground at the time of location will permit, and provide also for locating 
and patenting in any shape in cases of remnants of unclaimed ground between locations 
made in accordance with the law as now required. Without such provision there will, 
always remain small tracts, from a few feet to one hundred or more in length and of 
all conceivable shapes, unclaimed and certainly unsold by the United States. Most 
all such tracts could be sold at $5 per acre if provision were made therefor by law ? . 
no matter whether they contained mineral of much value or not. While I would! 
give a claimant six hundred feet in width, I would modify the law with regard to 
limiting him to three hundred feet on either side of the middle of the vein. Locations 
made in good faith do not always and in the nature of things cannot be always made 
to strictly conform to this requirement, and before the error can be corrected subse- 
quently acquired rights prevent a correction. 

If a claimant have a clearly defined lode witliin the limits of tlie 600 feet in tvidth, I 
would maintain him in the whole of the surface ground, and let him follow the dip of 
the vein as now provided. I would not permit the patenting of mill sites, even in 
connection with a bona fide mining claim, unless such mill site were practically occu- 
pied with ore-reduction machinery of some kind. Many choice pieces of ground are 
claimed and held under present law for merely speculative purposes, and owing to the 
refusal of Congress to appropriate money for the survey of pasturage lauds cienegas 
or springs are sometimes taken and held for stock purposes, but done under the min- 



4 PUBLIC LANDS. 

ing law providing for locating and patenting of mill sites. I would also permit mill 
sites to be located upon mineral land, since the full price of $5 per acre is exacted. It 
often happens that the choicest mill sites (for steam machinery) are on mineral land, 
though rarely of great value as such, yet under present law the fact of its being 
mineral prevents the best and most necessary use to be made of the land at any price, 
unless claimed and patented as mineral land. 

22. Emphatically no. Continuous possession, with practical work thereon, should be 
regarded in law as the very best of title. To limit the time, upon penalty of forfeit- 
ure of claims, in which to acquire title or patent (as I presume patent is meant) by 
purchase would open perpetual occupation to the army of blackmailers. If the law 
could and would fix the limit of time in which such creatures should establish a 
superior right, then a like limit might safely be fixed for the continuance of a pos- 
sessory title in the case of honest claimants. 

Without perhaps taking fully into consideration all the points in the premises, I 
would favor a change in the laws so as to not exact payment for land of any class 
(save in sales at private entry and auction) until patent should be placed in the hands 
of the local land office for delivery. It seems as if government should not, as it 
does now, demand payment long in advance of giving patent. An actual and bona 
fide occupant of public land is least able to pay, as a rule, when patent is applied for, 
and I certainly would give him the benefit of the use of the price of the land up to 
the very day government were ready to hand him a patent for his money. If Con- 
gress fail to appropriate money to enable the General Land Office to promptly exam- 
ine applications for and issue patents to land, I would not punish an honest man by 
compelling him to pay for it in advance — sometimes several years — of receiving title. 
It is not, in my judgment, a sufficient answer to say that government exhibits 
large liberality in permitting settlers to live upon and have the benefit of public land 
several years without any pay, because thousands of settlers, owing to the uncer- 
tainty of life and human affairs in general, would prefer to promptly pay for their 
land if title could be had. With title the land is an available security, and the pos- 
session of patent is the best stimulant to care and improvement. 
Very respectfully, your obedient servant, 

JOHN WASSON, 
United States Surveyor-General. 



Grants of land by Spain and Mexico, in the ultramarine possessions of the Spanish Crown. 

The ancient laws of Spain declare that the ownership and full dominion of conquered 
kingdoms belong to the monarch. (Law II, Title I, Partida II.) 

Wherefore, the West Indies having been conquered by the arms of the Catholic king 
and queen, Fernando and Isabel, in the sixteenth century, in consideration of the fact 
that no person can live without the means of subsistence, and no city exist without the 
rents necessary for its support, their majesties thought proper to cede to the towns 
(poblaciones) of America and to the councils of the same certain portions of lauds from 
which to derive their support, using the same for pasturage and cultivation, or in the 
manner that may be directed by the municipal ordinances ; these lands were denomi- 
nated consejiles, or de propios. 

Another portion of the (conquered) lands was distributed by concession of the king 
to those who assisted in conquering the country as rewards' for their services; and 
lands were also sold to individuals (particulares) for the purpose of obtaining means 
to supply the necessities of the crown. These lands, donated or sold, were denomi- 
nated de dominio particular (of private property), as in fact they are, because the full 
ownership thereof was transferred to the donees or purchasers, and hence they are truly 
private property. 

The usufruct of the remaining lands was ceded by the kings to all their vassals, that 
they might make use of their pastures, woods, waters, and other natural productions, 
for the support of their flocks and herds ; which lands are called " common lands," 
because they are for the common use. They are also called valdios (vacant lands), be- 
cause nothing is paid for the use of the pasturage, or fire-wood that may be cut thereon. 
They are also rcdlcngos (royal lands), because the dominion and property thereof are 
reserved to the king by his right of conquest, although he ceded the usufruct of the 
same to his vassals. (Law III, Title VIII, Book VIII, del Ordenamiento ; Law X, Title 
XV, Book II, Rocopilacion ; Law II, Title I, Book III, del Ordenamiento ; Law I, Title 
V, Book VII, Recopilacion.) 

For the disposition and settlement of the realengo lands of Spanish America, royal 
decrees were from time to time issued, and laws and ordinances passed, changed, or 



PUBLIC LANDS. O 

I 
modified to suit the circumstances of the times, having for their end a proper disposi- 
tion of the realengo lands and the encouragement of the occupation of the country by 
the actual settler. The royal decree of the 24th of November, 1735, required petition- 
ers for realengo lands to apply to the royal person of the king for a confirmation of 
their titles. This decree, however, was found to he prejudicial to the settlement of the 
realengo lands, the expenses attending such applications being so great as to prevent 
many persons from applying for these lands ; wherefore to remedy this difficulty were 
issued the royal instructions of the 15th of October, 1754. 

Article 1st of these instructions provides that from the date thereof the power to 
appoint sub-delegate judges to sell and compromise for vacant lands of the royal do- 
main shall belong exclusively to the viceroys and presidents of the royal audencias of 
the kingdom, who are required to notify the sub-delegate judges of their appointments? 
and furnish them with a copy of the instructions, the viceroys and presidents being 
required to give immediate notice to the secretary of state and universal dispatch of 
the Indies of the ministers whom they might appoint as sub- delegate judges of their 
respective districts. 

Article 3d provides that all persons who shall have possessed royal lands, whether 
settled and cultivated or not, from the year 1700 till the date of the publication of this 
order, may prove before the sub-delegate the titles and patents in virtue of which they 
hold their lands. 

Article 4th provides that persons in possession of royal lands by virtue of sales or 
compositions made by sub-delegates before the year 1700, although the same may not 
be confirmed by the royal person of the king shall not be disturbed in the possession 
thereof. 

Article 5th provides that the possessors of lands sold or compromised for, from the 
year 1700 till the present time, shall not be disturbed in the possession thereof, pro- 
vided their titles have been confirmed by the royal person of the king or by the vice- 
roys and presidents of the audencias during the time that they exercised this fac- 
ulty ; but such possessors of lands as have not obtained such confirmations shall apply 
to the audencias of the district to have their titles confirmed. Under this decree or 
instructions the preliminary proceedings of survey, valuation, publication, and sale of 
the realengo land petitioned for having been taken by the minister sub-delegado of the 
district in which the land was situated, the expediente showing such proceedings was 
transmitted to the real audencia for approval ; and if the proceedings were found to 
be regular, they were approved and the title was issued and registered in a book kept 
for that purpose. 

The provinces of Sinaloa and Sonora belonged to the real audencia of Guadalajara, 
and hence the sales made of realengo lands in these provinces under the decree of 1754 
were registered in the office of the real audencia in the city of Guadalajara. 

The law of 1754 remained in force until the 4th of December, 1786, when to cure 
some defects and remedy some inconveniences found in the practical workings of said 
law the royal ordinances of intendentes were issued. Under these royal ordinances 
the Kingdom of New Spain was divided into twelve intendencias, exclusive of the 
Calif ornias, one of which was to be the general intendencia of the army and province 
and to be established in the capital of Mexico, and one, the intendencia of Sonora 
and Sinaloa, the capital of which was established at the city of Arizpe. 

The viceroy was to exercise the superior authority and the various powers conferred 
on him by royal commission and by the laws of the Indies as governor and captain- 
general, but the superintendency of the royal treasury, in all its branches and rev- 
enues, was committed to the care, direction, and management of the general inten- 
dency of the army and treasury, established in the capital of Mexico. A superior 
junta was established in the capital, having jurisdiction over all matters relating to 
the royal treasury and the army, and also over the public property and revenues. 

Article 81 of these ordinances provides that the intendentes shall be the exclusive 
judges of all causes and questions that may arise in the district of their provinces in 
relation to the sale, composition, and grant of realengo lands. 

Under these ordinances the proceedings preliminary to a grant of realengo lands 
were taken in the same manner as under the law of the 15th of October, 1754, but 
these proceedings, instead of being referred to the real audencia for approval, were 
submitted to the intendente, who referred the same for examination to the promotor 
fiscal, who made a report thereon ; whereupon they were referred by the intendente to 
the " provincial junta de hacienda," and when approved were transmitted through 
the office of the comandante-general to the city of Mexico for final approval by the 
" superior junta de hacienda," and, if found to be correct, the proceedings were ap- 
proved, the approval registered in the proper book, and the expediente returned to the 
province where it belonged. 

Ou the 22d day of October, 1791. Don Pedro de Nava, comandante-general of west- 
ern provinces, made a decree to the effect that, " notwithstanding what was provided 
in article 81 of the ordinances of intendentes," captains of presidios were authorized 
to grant house lots and lands to soldiers and settlers who might desire to establish 



b PUBLIC LANDS. 

themselves under the protection of the presidio. These grants were, however, limited, 
to the territory embraced within four square leagues, measured one league from the 
prqsidio to each of the cardinal points. The motives of this decree are manifest ; they 
we^e that the soldiers of the presidio might make homes for their families, and that 
pueblos might grow up around the presidial establishments. 

The ordinances of the 4th of December, 1786, were further modified by the royal 
decree of the 23d of March, 1798. This decree provides that when the value of the 
realengo lands petitioned for and sold by the intendente does not reach the sum of 
$200 it shail not be necessary to refer the £>roceedings to the superior junta for ap- 
proval. The reason for the issuance of this decree was that the expenses attending a 
reference to the superior tribunal were often greater than the value of the lands sold, 
■which prevented persons of small means from making application for realengo lands, 
and much retarded the settlement of the country. 

Lender these ordinances, with the modifications referred to, grants of realengo or 
royal lands continued to be made until the dominion of Mexico was lost to the crown 
of Spain by the revolution which resulted in the independence of Mexico in 1821. 

From the foregoing laws, ordinances, and decrees it is seen that the constant policy 
of Spain was to encourage by all means the settlement of her possessions in the New 
World ; that, while the absolute ownership of the realengo lands was retained by the 
crown, laws from time to time were passed for the purpose of enabling actual settlers 
to obtain titles to so much of these realengo lands as they required for their use and 
occupation in the pursuits of agriculture and stock-raising ; yet, while the terms un- 
der which titles to these realengo lands could be obtained for actual use and occupa- 
tion were made so easy as to be within the reach of petitioners of humble means, still 
the government guarded with jealous care their disposition by passing such laws as 
made it impossible for the vassals of the king to acquire them for any other purpose 
than that of actual use and occupation. 

Grants of " terrenos valdios," . or vacant lands, by the Government of Mexico subsequent to 

the year 1821. ' 

The revolution of 1821 changed the form of the Government of Mexico without pro- 
ducing any radical change in the habits cr thoughts of the people. In 1822 an impe- 
rial government was established, which, however, was soon abolished, and the repub- 
lican form adopted, and in 1824 a federal constitution was formed, modeled somewhat 
after that of the United States. On the 4th of August, 1824, the sovereign constit- 
uent congress of the United States of Mexico passed decree No. 70, in which are spec- 
ified the sources of the federal revenues, and the eleventh article of this decree recites 
"that the rents that are not included in the preceding articles of this decree belong 
to the States." As a compensation for this concession by the general government the 
sum of $3,136,875 was required to be paid yearly by the states for the support of the 
general government. This sum was apportioned to the different states according to 
their population and wealth, the sum apportioned to the State of the West (Estado 
del Occidente,) embracing tli6 Spanish provinces of Sonora and Sinaloa, being $53,125. 
Under this law grants or sales of land were made in the State of Sonora from 1824 
down to the time when the system was changed by legislative enactment. 

After the independence of Mexico, the old intendencia of the Spanish Government, 
•embracing the provinces of Sonora and Sinaloa, was called El Estado del Occidente 
(the State of the West), continuing united under that name until about the year 1830, 
they were divided by the boundary as it now exists. 

On the 20th of May, 1825, the constituent congress of the free, independent, ami 
sovereign State of the West (Estado del Occidente) passed provisional law No. 30, reg- 
ulating the system of selling the public lands. Under these provisional regulations 
the prices at which the public lands could be sold were graduated according to the loca- 
tion and quality of the land. The quantity allowed to one individual was limited to 
four square leagues, unless the applicant could satisfy the government that he re- 
quired more for the use of his stock. Under this provisional law the State of the 
West, in making grants or sales of land, continued the system that had been estab- 
lished by the Spanish Government. The same formalities were observed ; (he lands 
were surveyed, valued, published for thirty days, and at the end of that time were 
sold at public auction to the highest bidder, the treasurer-general of the state occu- 
pying the same position under the state government that the intendente did under 
the Spanish Government. The grants, however, issued by the treasurer-general re- 
quired no approval by the supreme government. 

Between the time when grants cease to he made within the jurisdiction of the inten- 
dencia of Sonora and Sinaloa by the authorities of the Spanish Government and the 
» time when they were made by the authorities of the" Estado del Occidente "under the 
law of the general congress of 1524 ami the provisional law of the congress of the 
state of 1825, the granting power was exercised by an officer entitled romixario gen- 
eral, provisional de hacienda, credito publico y guerra, whose headquarters, as shown by 



PUBLIC LANDS. 7 

the records of the times, were generally at Fuerte, a town in Sinaloa, near the north- 
ern boundary of the State. 

Report of special agent, Mr. R. C. Hopkins, states: " That notes on expedientes of 
grants of land in the government archives of Sonora show that ahout the year 1825 a 
number of grants were issued by the above-named officer, on proceedings which under 
the Spauish Government had not gone beyond the approval of the provincial junta de 
hacienda," having doubtless at that point been arrested by the revolution of 1821. In 
these cases no borradores or draughts of title are found in the expedientes, but notes 
are found of the register of the grant in cuardeno No. 2 in the office of the comisario 
general. 

On the 30th of May, 1834, the constituent congress of the State of Sonora issued 
decree No. 10, which provides as follows: '-'Article 1st. Six months' further time is 
granted to possessors of lands who have failed to obtain titles of ownership thereof, 
as required by decree No. 10 of the 28th of June, 1833." 

Article 2d declares that if at the end of this time, which shall not be extended, the 
possessors of lands shall not appear and make their grants effective, their lands shall 
be denounceable, and the claimants thereof shall be subject to the penalties imposed 
by the organic law of the treasury, which is about to be passed. This law was re- 
quired to be circulated and published in all the pueblos of the State, the respective 
authorities being directed to furnish exact lists of the lands in their districts for 
which titles had not been obtained. 

On the 11th of July, 1834, was passed the "ley organica de hacienda" (organic law 
of the treasury). Article 57 of this law provides : That any one having necessity for a 
tract of land for grazing or other purposes shall present himself before the treasurer 
general, applying therefor in the name of the State, accompanying his application with 
the testimony of three impartial witnesses in relation to the circumstances of the peti- 
tioner, character of land, &c. 

Article 58 declares that to no new settler (creador) more than four square leagues 
shall be granted or sold, unless it can be shown that,%n account of the abundance of 
stock owned by such new settler, he needs more ; in which case the treasurer general 
will concede him only so much as he may need, as shown by the testimony of impar- 
tial witnesses. 

Article 60 declares that the treasurer general, as the immediate chief of all the reve- 
nues, shall make sale of the lands and issue titles therefor. 

Article 61 declares that those who possess lands to which they have not obtained 
titles, although the lands have been applied for and surveyed, shall present themselves 
to the treasurer general within the time designated by the law No. 10 of the 30th of 
May of the current year (six months from 1st of June^ 1834). The lands of the pro- 
prietors, which may not be regulated in accordance with this disposition, shall remain 
vacant and denounceable, provided the proprietors thereof shall not present themselves 
and make application for their titles within the time prescribed by said law, setting 
out in writing the cause of the failure to obtain title. 

Article 62 directs the 'treasurer general to refer these matters to the promotor fiscal 
for his opinion, whereupon the matter will be determined in view of the rights of the 
interested party and of the public treasury. 

Article 63 requires grantees of lands to construct boundary monuments of rough 
stone and lime within three months after the issuing of the title, and failing to do so, 
they have to pay a fine of $25 and the cost of constructing the necessary monuments. 

Article 64 fixes the value of the public lands as follows : For dry lands only suitable 
for grazing, $15 per square league; for such as may be irrigated from reservoirs and 
contain pasture, $40, and without these circumstances, $35 per square league ; for such 
as may contain springs or rivers, but are dry and broken, $60 per square league, and 
$80 per square league for such as are very fertile and suitable for agriculture. These 
were the minimum prices, for less than which lands could not be sold in any case 
whatever. 

Article 72 directs the surveyors to appoint as apj)raisers of the lands petitioned for 
persons who are free from prejudice and not especially partial to the petitioner. 

Grants made subsequent to the passage of the foregoing law refer to the decree of 
the general congress of the 4th of "August, 1824, and to the decrees of the congress of 
the State of Sonora of the 30th of May, 1825, and of the 11th of July, 1834, as the basis 
on which they were made ; and all the grants of land in Sonora since the passage of 
these laws were made under the authority thereof. 

Grants under the laws of colonization. 

To encourage the settlement of the vacant lands of the republic, the sovereign gen- 
eral constituent congress of the United States of Mexico, on the 18th of August, 1824, 
passed a law, article 1st of which declares : " That the Mexican nation offers to for- 
eigners, who may come to establish themselves in the territory, security in their per- 
sons and property, provided they submit to the laws of the country." 



8 PUBLIC LANDS. 

Under this law any lands of the nation that did not belong to private individuals or 
pertain to corporations or pueblos were subject to colonization, except such as were 
embraced within the twenty leagues bordering on a foreign territory, or the ten leagues 
bordering on the seashore. In the granting of these lands Mexican citizens were to be 
preferred to foreigners. To carry into effect this general law the congresses of the 
states were to form such laws and regulations as might be necessary, in accordance 
with the general constitution and principles established by this law. 

The maximum quantity that could be granted to one person under this law was 
eleven square leagues; one of irrigable, four of arable, and six of pasture lands. 

The concluding article declares that, in accordance with the principles established 
by this law, the government will proceed to colonize the territories of the republic. 

Under this law grants were made in the territory and department of the Califor- 
nias down to the change of government on the 7th of July, 1846. 

On the 4th of April, 1837, a decree was issued " to render effective the colonization 
of the lands of the republic." This decree declares the government, in concert with 
the council, shall proceed to render effective the colonization of the lands which may 
be, or should be, the property of the government, by means of sales, leases, or mort- 
gages, applying the proceeds thereof ( which in case of sale shall be at a price not less 
than $1.25 per acre) to the extinguishment of the national debt, which has already 
been or may be contracted; always reserving a sufficient quantity to fulfill the prom- 
ises made to the soldiers, as a reward for their services in the war of independence, 
and also sufficient to satisfy the concessions made by congress as Indian reservations, 
and to those who had assisted in the re-establishment of the government in Texas. 

On the 15th of September, 1837, an agreement was entered into in the city of Lon- 
don between the agents of the Mexican Government and the holders of Mexican bonds 
to the following effect : Article 1 provides for the consolidation of the national debt 
at 5 per cent, interest per annum. F. de Lizardy & Co. were appointed as agents of 
the republic to act in the matter; these gentlemen to issue, in the name of the Mex- 
ican Government, the corresponding bonds of the consolidated fund in sterling money, 
payable in London on the 1st of October, 1866. A certain class of these bonds were 
receivable in payment for vacant lands in the departments of Texas, Chihuahua, New 
Mexico, Sonora, and California, as might be desired by the purchaser, at the rate of £1 
sterling for four acres ; interest to run on the bonds until the purchasers of the lands 
should be placed in possession thereof. 

Article 7 of this agreement provided that the payment of the principal and interest 
of these bonds should be secured by a mortgage, in the name of the Mexican nation., 
on one hundred millions of acres of the vacant lands of the departments of the Cali- 
fornias, Chihuahua, New Mexico, Sonora, and Texas. 

On the 1st of June, 1839, the foregoing agreement was approved by decree of Presi- 
dent Santa Ana. 

Attempt of President Santa Ana to annul grants made in the territory of the republic 
after 21s* of September, 1821. 

On the 25th of November, 1853, President Santa Ana issued a dictatorial decree de- 
claring : "That the vacant lands (terrenos valdios) being the exclusive property of the 
nation, could never have been alienated by any title whatever, by virtue of decrees, 
orders, and dispositions of the legislatures, governments, or authorities of the states or 
territories of the republic ; wherefore such sales, cessions, and alienations as may have 
been made of the vacant lands, without the express order and sanction of the general 
powers in the form prescribed by law, are declared null and void." On the 7th of July, 
1854, President Santa Ana issued a second decree in relation to public lands, requiring 
all titles of the alienation of public lands made in the territory of the republic from 
September, 1821, to the date of the decree, given either by the general authorities or 
by the extinguished states and departments, shall be submitted to the revision of the 
supreme government, without which they shall be considered of no value, nor shall 
they convey any right of property. The foregoing decrees of President Santa Ana were 
annulled as follows : "On the 3d of December, 1855, Juan Alvarez, president ad interim 
of the Mexican Republic, issued a decree abrogating in all their parts the decrees of 
the 25th of November, 1853, and of the 7th of July, 1854, issued by President Santa 
Ana, and declaring that all the titles issued during the period referred to in said de- 
crees of 1853 and 1854 by the superior authorities of the states or territories, under 
the federal system, by virtue of their legal faculties, or by the authorities of the de- 
partments or territories, under the central system, without the express authorization 
or consent of the supreme government for the acquisition of said lands, the same being 
in accordance with existing laws in relation to such alienations, shall in all time be 
considered as firm and valid, the same as the titles to any other property legally ac- 
quired, without in any case being subject to a new revision or ratification by the gov- 
ernment." 



PUBLIC LANDS. \) 

This decree further declares : "That the alienations of vacant lands that may have 
been made by the authorities of the states, departments, or territories, without the 
requisites mentioned in the foregoing article, and in contravention of the requirements 
of article 4 of the law of congress of the 18th of August, 1824, are null and void, and 
the possessors of lands in such cases shall be subject to such penalties as may be im- 
posed by the laws of the republic." 

Article 4th of the law of the 18th of August, 1824, above referred to, is as follows : 
11 The territories embraced within the twenty leagues bordering on a foreign nation, 
and the ten leagues bordering on the sea, cannot be colonized without the previous 
approval of the Supreme Government." Decree of President Alvarez further declares : 
" That the concessions or sales of vacant lands which may have been made by compe- 
tent authority and in accordance with the laws in force controlling the same, under 
the express obligation of colonizing them within a fixed time, on a failure to comply 
with this condition shall be void, the land in such case reverting to the nation." The 
decrees of President Santa Ana of 1853 and 1854 were also abrogated by the act of the 
Mexican Congress of the 16th of November, 1856. But even if the dictatorial decrees 
of President Santa Ana had not been declared null, they could not affect the Mexican 
grants in Arizona, since the treaty was signed on the 25th of September, 1853, while 
the decree of Santa Ana was not issued until the 25th of November, 1853, and that al- 
though ratifications of the treaty were not exchanged until after the 25th of Novem- 
ber, 1853, these ratifications have a retroactive effect, relating to the date of the treaty, 
(September 25th, 1853), and bound both governments from that date. 

From tlte foregoing historic sketch of the laws, ordinances, and decrees of the gov- 
ernments of Spain and Mexico in relation to the disposition of public lands is gath- 
ered : 1st, that under the ancient laws of Spain the fall dominion of a conquered king- 
dom was claimed by the monarch by right of conquest. 2d, that the lands of the 
conquered kingdoms were divided into three classes ; first, such as were conceded for 
the establishment and support of pueblos, which were denominated consejiles or de pro- 
pios ; second, such as were granted by the king to those who had assisted in conquering 
the country, and such as were sold to individuals, for the purpose of obtaining means 
to supply the necessities of the crown, which lands were denominated de dominio par- 
ticular ; and third, such as remained of the conquered kingdom, which were called 
" common lands," " vacant lands," and " royal lands." 3d, that the usufruct of this 
last-mentioned class of lands was ceded by the kings to their vassals, under the provis- 
ions of such laws as from time to time were passed in relation thereto. 4th, that 
these royal lands were granted for use and occupation, and that the quantity granted 
was limited to such an amount as the applicant might need and was able to use and 
occupy. 5th, that up to the 15th of October, 1754, grants or concessions of royal lands 
required the approval of the king. 6th, that from the 15th of October, 1754, to the 
4th of December, 1786, grants of land were issued by the real audencias, and did not 
require the approval of the king. 7th, that from said 4th of December to the date of 
the Mexican independence grants of the royal lands were made by the intendentes or 
governors of provinces, and required the approval of the " superior junta de hacienda" 
established in the capital of Mexico. 8th, that the exceptions to this rule are as fol- 
lows, to wit : On the 22d day of October, 1791, Don Pedro de Nava issued an order 
permitting captains of presidios to make grants within the four jurisdictional leagues 
of the presidio, and in 1798 grants of the royal lands of a value less than $200 did not 
require the approval of the " superior junta de hacienda." 9th, that on the change 
of governments in 1821 the realengo or royal lands of the Spanish Government became 
the public lands of the Republic of Mexico, and continued to be disposed of to settlers, 
by valuation and sale, much in the same manner as they had been under the Spanish 
Government. 10th, that the act of the Mexican congress of the 4th of August, 1824, 
gave to the State of the West (Estado del Occidents), composed of the states of So- 
nora and Sinaloa, the public lands embraced therein, requiring from the state for this 
concession the annual payment into the federal treasury of the sum of $53,125, and 
that based upon this act of the general congress the congress of the states of Sonora 
and Sinaloa united, on the 20th of May, 1825, passed a provisional law providing for 
the disposition of the public lands, which provisional law was followed by the organic 
law of hacienda, passed by the congress of the state on the 11th of July, 1834, con- 
firming the provisional law of 1825, with some amendments thereto. 11th, that on 
the 18th of August, 1824, the general congress of Mexico authorized the colonization 
of such lands of the nation as did not belong to individuals or corporations, directing 
the legislatures of the states to make such laws or regulations as might be necessary 
for the carrying into effect the provisions of this general law within their respective 
jurisdictions. 12th, that the provisional regulations made by the congress of Sonora 
on the 20th of May, 1825, for the disposition and settlement of the public lands, may 
be considered as authorized to be made by the act of the general congress of the 18th 
of August, 1824. 13th, that on the 25th of November, 1853, and the 7th of July, 1854, 
General Santa Ana, by dictatorial decrees, attempted to annul the grants of land made 
subsequent to the 15th of September, 1821, which decrees were abrogated by deceree of 



10 PUBLIC LANDS. 

president Alvarez on the 3d of December, 1855, and by act of the Mexican congress, passed 
November 16, 1856. 14th, that grants of the realengo or royal lands were made by the 
Spanish Government, for settlement, use, and occupation, and that grants under the 
Mexican laws of colonization, and under the provisional regulations made by the con- 
gress of Sonora and Sinaloa, of the 20th of May, 1825, and the organic laws of hacienda 
of the 11th of July, 1834, were made under the condition of occupation within a lim- 
ited time, under penalty of a forfeiture of the right granted, unless a good cause could 
be shown why the condition of occupation had not been complied with. 

Wherefore, since grants of the public lands were given on condition that they con- 
tinued to be occupied, and if abandoned they were subject to denouncement and could 
be regranted by the government, it is manifest that these grants of the public domain 
by the government were conditional, and did not pass the absolute title or fee of the 
land. 



Mines and minerals. 

In accordance with Interior Department instructions, I have collected information 
from authentic sources in reference to the laws of Spain and Mexico respecting min- 
erals and what conditions attached to grants embracing mines. 

From the earliest European settlement of the country mining for the precious metals 
constituted the principal branch of industry in Spanish America, and being the one 
that yielded the largest revenue to the government, laws and royal ordinances were 
from time to time passed for the encouragement of the adventurous prospectors and 
for the protection of the fortunate discoverer of mines of the precious metals ; yet, 
although these laws and ordinances dignified the mining profession by attaching 
thereto the privileges of nobility, still the government went no further in its liberality 
than to grant the miner the exclusive privilege of working the mine he might have 
discovered in the manner required and under the conditions imposed by the laws and 
ordinances in relation thereto ; and when these conditions were disregarded or violated 
the ownership of the mine, or rather the exclusive right to work it, was lost, and the 
same reverted to the government, to be acquired by any one else who might under- 
take to comply with the conditions under which it had been granted to the former 
owner, the absolute ownership of the mine ever remaining in the government. 

Joaquin Escriche, in his Diccionario Razonado de Legislacion y Jurisprudencia (a 
standard authority), under the head of Minas, says : "According to the ancient Roman 
law, mines of gold, silver, copper, iron, and other metals pertained to the owner of the 
land on which they were discoyered, erant privati, juris, et in libero privatorum usa juris 
comercio, because they are benents bestowed by nature, to be enjoyed by the owners of 
the land producing the same. Subsequently the Roman emperor appropriated one- 
tenth of the products of the mines of every character. 

" Under the Spanish law a different rule was adopted; mines of gold, silver, lead, 
and other metals could not be worked without royal permission, since they (and also 
salt pits) belonged to the king. Any one was permitted to ' dig ' in search of minerals 
or stones on his own lands, or on the lands of others with the consent of the owner, 
under the condition that the discoverer should receive one-third part of the net pro- 
ceeds of the discovery, the other two-third parts to be given to the government. 
Every Spaniard or foreigner was permitted to 'dig' in search of minerals on public 
or private lands, under the obligation of compensating for the damages occasioned. 
In Mexico, Venezuela, and Chili the matter of mines is governed by the ordinances of 
the 22d of May, 1783." (Escriche, new edition, printed 1869, Mina.) 

As early as the year 1383, Don Alonzo XI issued a " pragmatica" in which it is de- 
clared : " That all mines of silver and gold and lead, and of any other metal whatever, 
of whatsoever kind it may be, in our royal soigniory shall belong to us, therefore no 
one shall presume to work them without our special license and command; and also 
the salt springs, basins, and wells which are for making salt, shall belong to us, where- 
fore we command that they revert to us with the produce of the whole thereof, and 
that no one presume to intermeddle therein except those to whom the former kings, 
our predecessors, or we ourselves may give them as a privilege, or who may have 
held them from time immemorial." {Vide Book VI, Title XIII, Law II, Recopilacion 
de Castilla; Book IX, Title XVIII, Novisima Recopilacion.) 

The law of Philip II, 1559, declares : That inasmuch as the discoverers of mines, after 
having discovered and registered them, protend that by that act alone they have 
acquired such a right to them that no other person can, withiu the limits and space of 
such mines, enter, or try, or work, and that they can thus keep them encumbered 
without working them themselves or permitting others to do so, by which they prevent 
the principal produce and profit which belongs as well to us as to our subjects and to the 
public welfare, since that principally consists in the working and reduction of mines 
and metals, and not merely in their discovery, we declare and command that such dis- 
coverer of the mine or mines of silver, after having made registry in the manner pre- 



PUBLIC LANDS. 11 

scribed, shall be obliged within six months to sink and excavate to the depth of three 
estados (a measure of about six feet), and not sinking and excavating his mine to the 
depth of three estados, it may be denounced before the judge and registry made thereof 
as of a vacant or undiscovered mine. Also, that we reclaim, resume, and incorporate 
in ourself, in our crown and patrimony, all the mines of gold and silver and quicksilver 
of these kingdoms, in whatsoever parts and places they may be and are found, whether 
in royal lands, or in those of lordships, or of the clergy, and whether in public, munici- 
pal, or vacant lands, or in inheritances, places, and soils of individuals, notwithstand- 
ing the grants which by us and by the kings, oar predecessors, have been made to any 
persous, of whatsoever condition, rank, and dignity they may be. (Book VI, Title 
XIII, Law IV, Eecopilacion de Castilla. Also, Book IX, Title XVIII, Law III, Novisiina 
Eecopilacion.) 

Royal ordinances for the direction, regulation, and government of 'the important body of mining 
of New Spain and of its royal tribunal general, May 22, 1783. 

Article I, Title V, declares : That mines are the property of the royal crown, as well 
by their nature and origin as by their reunion declared in Law IV, Title XIII, Book 
VI, Nueva Eecopilacion. 

Article II, same title, declares : That without separating them from the royal patri- 
mony, they are granted to the subjects of the king in property and possession, in such 
manner that they may sell, rent, donate, and pass them by will, either in the way of 
inheritance or legacy, or in any other manner alienate the right which in the mines 
belongs to them, on the same terms on which they themselves possess it, and to persons 
capable of acquiring the same. 

Article III, same title, declares: That this grant is understood to be with the condi- 
tions that the grantees contribute to the royal treasury the prescribed portion of the 
metals, and that they shall work the mines in the manner prescribed by the ordinances, 
so that they shall be considered forfeited whenever a failure shall occur in complying 
with the ordinances in which it is provided, and that they may be granted to any 
person who for that cause may denounce them. 

Article I, Title VI, declares : That the discoverers of one or more mineral hills, abso- 
lutely new, may acquire on the principal vein which they may select as many as three 
pertcnencias, continued or interrupted, according to the measurements which shall be 
prescribed, and if they may have discovered more veins, they may have one pertenencia 
on each vein, said pertenencia being determined and marked out within ten days. (A 
pertenencia was in extent two hundred varus, measured on the vein, the width being 
determined by the dip or angle thereof, being sufficiently wide to prevent the vein 
from being cut by a shaft sunk on a side claim, at a depth of less than two hundred 
varas, this being the depth beyond which, in those times, it was considered unprofitable 
to work a mine.) 

Article X, same title, declares : That if the denouncer of a mine does not put his 
working-shaft in order nor take possession within sixty days, he shall lose his right, 
and the mine may be denounced by another. 

Article XIV, same title, declares : That any one may discover and denounce a vein 
or mine, not only in common land but also in the private lands of any individual, pro- 
vided he pays for the land of which he occupies the surface, and the damage which 
immediately ensues therefrom, according to the valuation of the experts appointed by 
both parties, and a third in case of disagreement. 

Article II, Title IX, provides : That no one shall be permitted to work mines without 
the direction and continual assistance of one of the intelligent and practical experts 
who in New Spain are called Mineros or Guarda-minas, who must be examined, licensed 
and affirmed by one of the prof essors of mining, which each Real or Asiento must have. 

Article XIII, same title, declares : That as mines require to be worked continually 
and incessantly in order to procure their metals, and as they require in them works 
and operations which can be executed only in a long time, and as. their Te-establish- 
ment, if their working be suspended and interrupted, will cost as much as in their 
original undertaking, therefore to obviate this inconvenience, and also to prevent any 
owners of mines who cannot or will not work them, from keeping them without use, 
and for a long time impeding by pretended working, the real and effective labor which 
others might bestow upon them, I order and command that any one who shall for four 
consecutive months fail to work a mine with four operatives regularly employed and 
occupied in some interior or exterior work of real utility and advantage, shall "thereby 
forfeit the right which he may have to the mine, and it shall belong to the denouncer 
who proves its desertion. 

Article X, same title, declares : That no mine shall be abandoned without first in- 
forming the deputation of the district, in order that it may be published by fixing no- 
tices on the doors of the churches and other accustomed places, so that all may have 
notice thereof. 

Article II, Title XIX, grants in favor of scientific professors of mining the privi- 
leges of nobility in order that all persons who devote themselves to this important pro- 



12 PUBLIC LANDS. 

fession and occupation may be considered and treated with all the distinction due to 
so noble a profession. 

According to Escriche, the laws of Spain passed prior to 1821 and the laws of Mex- 
ico passed since that date have not changed the fundamental principles laid down in 
the ordinances of the 22d of May, 1783, in relation to the ownership of mines and the 
manner of acquiring title thereto ; hence these ordinances have been in force in Mexico 
since the date of their passage in 1783, the Mexican mining laws passed since the year 
1821 not having essentially changed the spirit thereof. 

From the foregoing it is manifest that under the laws and royal ordinances of Spain, 
from very early times down to the date of the independence of Mexico, and under the 
mining laws of Mexico down to the publication of the new edition of Escriche (1869) 
the miner could acquire no absolute title or fee in any mine discovered by him in any 
part of the Mexican territory, the usufruct thereof being all that was granted him by 
the government, and this under such regulations, instructions, and conditions as were 
imposed by law ; and when these conditions were not complied with, the right to work 
the mine was lost, and could be acquired by any one else who might undertake to com- 
ply with the conditions and regulations inseparable from the privilege of working 
mines. The Spanish and Mexican Governments, in granting lands in Mexico, never in 
terms reserved the minerals contained therein, for the reason that under the constitu- 
tional laws they were reserved by and for the government. For this reason, in the 
many grants of land made by Spanish and Mexican authorities in Sonora, as well as in 
California, no mention is made of minerals. 

Pastoral and mining pursuits were separate branches of industry, and in a certain 
sense independent of each other. Both were cherished and protected by the govern-" 
ment. To the grazier and agriculturist was granted so much of the soil as he had 
means to occupy and improve, together with such appurtenances thereto as were neces- 
sary to make the occupation of the soil possible and the use thereof valuable ; and to 
the miner were granted the minerals he might discover in the soil and the usufruct of 
the mine in which they were found. But to neither of these parties was the grant un- 
conditional. To the grazier were granted lands on condition that he occupied them 
usefully to himself and to v the government, and the abandonment thereof was followed 
by a forfeiture of title, in which case the land reverted to the government to be re- 
granted to a more industrious applicant. To the miner was granted the exclusive 
right to work the mine he might have discovered, on condition that he observe cer- 
tain rules and regulations established by law and paid to the government a certain 
portion of the products of the mine ; a violation of these conditions was also followed 
by a forfeiture of such title as he possessed, the usufruct of the mine reverting to the 
government to be regranted to a more vigilant and "honest miner." 

The objects of the government in granting lands for settlement were the increase of 
the wealth and population of the country, the spread of the holy Catholic faith, and the 
extension of the power of the Spanish monarchy ; and the motive that induced the grant- 
ing of privileges to miners was that the royal treasury might be supplied with Amer- 
ican gold. No grants of lands or mines were ever made by the Government of Spain 
or Mexico for speculative purposes. It is true that lands were sometimes granted as a 
reward for distinguished services, but in all other cases on oondition of occupation. 

From a careful consideration of the foregoing laws and ordinances, as well as of the 
usages and customs of Spain and Mexico, I am forced to the conclusions : 

First. That the grantee of land under the Spanish and Mexican Governments ac- 
quired no title to the minerals contained in the granted land. 

Second. That the title to the minerals contained in the tract granted remained in 
the government notwithstanding the grant of the land. 

Third. That under the Spanish and Mexican laws and ordinances any one had a right 
to " dig " in search of minerals, under certain conditions, on his own lands or on those 
belonging to individuals or private persons. 

Fourth. That the Government of the United States under the treaty of 1853 for the 
purchase of a portion of the territory of Sonora succeeded to all the rights and obli- 
gations of the Mexican Government in relation to tho ceded territory at the date of the 
treaty. 

The result of these conclusions necessarily is : That since our government succeeded 
to all the rights and obligations of the Mexican Government in relation to the ceded 
territory it is bound by the treaty to recognize and confirm all rights, titles, and privi- 
leges which had been granted by that government to private individuals prior to the 
cession of the territory, and to carry out the intentions of the Mexican Government 
toward those having ownership in lands and mines precisely as if there had been no 
change of sovereignty. 

It is therefore clear to my mind that any one has at present a right to prospect for 
minerals on such portions of the ceded territory as may have been granted by the Mex- 
ican Government to private individuals, and a right to work any mines that may be 
found on said lands, under no more onerous conditions than the reasonable ones im- 
posed by the mining laws of Mexico. See] Article XIV, Title VI, Ordinances May 22d, 
1783, heretofore cited. 



PUBLIC LANDS. 13 

Testimony of William Ashburner, of San Francisco, Cal. 

William Ashburner, who resides in San Francisco, testified, October 11 : 

I have lived in San Francisco since 1860 ; I have been through the Sierra Nevada 
Mountains a great deal, and am very familiar with them. 

Question. Give us a little account of the timber, and the way in which the timber 
is destroyed. — Answer. The timber on the plains of California and near the coast 
range of the Sierra Nevada Mountains is very scarce, indeed. It consists mostly of 
oak, of no great value except for fuel. When you reach the foot-hills it becomes larger 
and there is more of it ; as you rise to an altitude of two thousand or twenty-five 
hundred feet the evergreen sets in, and from until you reach the very summits of the 
Sierra Nevadas the timber is very thick. On the summits themselves there is a smaller 
pine, which is of peculiar growth, being almost Alpine in its character. For a range 
of perhaps thirty or forty miles in width, extending very nearly the whole length of 
California, is a region very thickly timbered, and it is very valuable. In the neigh- 
borhood of towns and settlements the destruction of timber has been enormous, both 
for the purpose of building and sale. In the lower foot-hills and for mining purposes 
a great deal of it has been wasted by burning and clearing up agricultural lands. 
This has occurred in the central portion of California, and also in the northern part 
as far south as Kern County. They would claim the timber for agricultural purposes, 
and it would be wasted. I think it would be for the best interest of the government 
if they should provide for the sale of it at a certain price, allowing the people to 
buy it for certain purposes. If they wished to use the timber for building or saw-mill 
purposes, they should have that privilege. No wanton destruction of it should be 
tolerated, and should be made even a criminal offense ; because if the waste goes on 
for fifty years as it has been during the past twenty-five years it would seriously 
affect the climate of California. The rain and snow fall in the mountains, even if it 
was as great as it is now, would be dissipated much more rapidly, and the usefulness 
of the water would consequently be much impaired. 

Q. Can the government dispose of this timber in small quantities to actual set- 
tlers ? — A. I think men would settle on 160 acres, but not at the present time ; but 
they would before long, because probably in twenty-five or thirty years the timber 
will be much more valuable than it is now. In the mountains it is being destroyed 
by fire, and I would put very severe restrictions over its use. The sheepherders go 
through the mountains, and are very careless in building their tires, which catch in 
the timber and rage through the mountains for weeks, and I do not know but for 
months, during the summer, as soon as the woods become dry, and they continue fre- 
quently until the rain. Some years ago there was a great deal of difficulty in the 
great tree groves of Mariposa County. At that time fires annually used to run through 
these groves. They were started by the sheepherders, and perhaps by the Indians, but 
that has been stopped without any difficulty. There have not been any fires there for 
six or seven years. Some little care is exercised by the persons in the neighborhood, 
but it is very slight indeed ; yet it is sufficient to stop the fires. I would recommend 
that the government make reservations of the big trees and the redwood groves. 
There are several localities I cannot indicate at this time which are almost inaccessi- 
ble now for saw-mill purposes. They could be reserved without doing any injury to 
any parties. They are on government lands. If the destruction of the redwood 
and big trees is allowed to go for a few years there will be none existing. There are 
the Calaveras grove, the Mariposa groves, the Fresnel groves, several in the Visalia 
district (extending over a very extensive area, as much as twenty miles in length). 
There are several saw-mills in these, cutting the big trees; and, in addition to this, 
there are several small groups containing a very small number of trees. The Mari- 
posa grove has 365 trees in it. The Visalia grove has several thousand. I would rec- 
ommend the reservation of all the big-tree groves. The timber in these groves is not 
very good, the trees are so very old, and if they were destroyed entirely they would 
never grow again. I would not only recommend, the reservation of the big trees, but 
also the reservation of other species of sequoias. They exist in other places, although 
I vm not familiar enough with the localities to tell off-hand where they are. There 
are maps, however, in this land office that will show you. 

Q. Are not these irrigable lands, which are valuable for agriculture only by irriga- 
tion, somewhat extensive? What would you do with them? — A. They are very ex- 
tensive indeed. In the San Juan country there are thousands of acres that can be 
made available only by irrigation. I do not feel myself competent to suggest any 
change of the laws. This question is a very complicated one. I believe the experi- 
ments of the Indian government have proven that irrigation works have not been 
remunerative to those who built them. Whether in this State the State government 
or general government should build these ditches and sell the water is something I 
cannot express, my opinion about. Individuals are not able to take out the streams 
for irrigation purposes ; it is simply out of the question for them to do it. There is a 



34 PUBLIC LANDS. 

great deal of land that by irrigation could be made exceedingly valuable, more valua- 
ble 1 dan jMt.v otber land in the State. I have seen that very frequently in Nevada. 
You know what the general nature of the soil is there. It is a barren wilderness but 
nearlj all of that soil can be made to bloom and blossom like a garden. There are 
souk- valuable farms there, which have been made so entirely by irrigation. They 
produce a very large and valuable crop. 

Q. Yon recognize that there is a large body of land valuable ionly for pasturage pur- 
poe« s; what system of disposition should the government adopt for these lands? — A. I 
think they should be sold as ordinary lands. I do not think it is judicious to allow 
vers much holdings on these lands by private individuals unless they pay for them and 
pa\ 1 :i> es upon them. 

(>. How many acres will support a beef? — A. I cannot say. If you could irrigate 
this land it would take very few acres; but if you cannot irrigate it, it would take a 
£,ood many more acres to support a beef than it would by irrigation. It seems to me 
that eight or ten acres would be equivalent to one acre under ordinary circumstances. 
There is a great deal of difference in different portions of these pasturage lands. I see 
very large ranches devoted to small bands of cattle all through the State, particularly 
in the central and southern portions. The grass dries up with the wet immediately 
after the rain and the cattle then live ux3on the burr clover. They lick it up from the 
soil. After the first rain, when the rain drives the seed into the soil again, from that 
time until the grass grows up again the cattle lead a very precarious existence. 

Q. If a man was allowed to select this land would he not control large areas of it by 
controlling the water ?— A. If the pasturage lands were thrown open to settlers the 
persons who located upon them would secure the streams of water (whatever streams 
there might be), and thus inevitably control a very much larger portion than they 
selected. I cannot suggest any remedy for this unless the government will take con- 
trol of the water courses and springs. 

Q. With reference to some comprehensive plan of irrigation, how would it do to sur- 
vey the land in tracts covering all the water, so as to give the water privileges to the 
greatest possible number of tracts ? — A. That would be best, if it could be done ; but 
would hot that under the present law inevitably compel a change in the land system. 

Q. It would change the forms and the tracts to be surveyed ? — A. You would have 
the price graded then. I see no objection to that being done provided there was not 
a uniform price for the land ; otherwise a very large amount would remain in the hands 
of the government indefinitely and never be sold. The pasturage lands, I think, 
should be sold according to their value, with reference to their producing power and 
their proximity to water. 

Q. In disposing of timber land and pasturage land in the several portions of the 
country some of it might also be mineral lands. Should the right to prospect and dis- 
cover mines be abridged and the land sold for pasturage, farming, and other purposes ? — 
A. I think so, sir. I think in California that we have had a very fair chauce to pros- 
pect the whole State. We have been engaged in that business for twenty -five years ; 
and when land is taken up for agricultural or mining purposes it should be devoted 
to that only. Persons who have no rights interfere with the rights of another ; I 
should put mining and agricultural rights on the same footing. 

Q. Would you not sever the subterranean rights from the surface rights and let the 
government dispose of the surface rights for pasturage or timbering purposes, reserving 
the mining land ? — A. If you did that, it would be returning to that principle of other 
governments that all minerals belong to the crown. They are there especially reserved 
and worked under the authority of the government. If that were done, it would work 
a complete change in the whole system. Individually, I see a great many advantages 
in the government reserving rights over the minerals, for the reason that they can 
control the manner in which it should be worked. Take the Comstock, for instance. 
It has not been worked very scientifically. The waste of precious metals there has 
been very great, and this seems to be the case with most of the precious-metal mines 
in the United States. There are many mines in California that have not been worked 
judiciously and carefully. They might be producing to-day, had they been worked 
under some system, whereas they have been abandoned, and probably will remain so 
for an indefinite time. So far as the government does not claim any right over the 
mines, I see no reason why a special reservation should be made in favor of the miner. 
I think at the time that the reservation of the mineral lands was made, which I rind 
was very shortly after the discovery of gold in California, that all lands within five 
miles of any known mineral belt were reserved for mineral purposes. That I think 
was very judicious at the time it was done, for the reason that California was not con- 
sidered to be of any value for agricultural purposes; it was valuable for its mineral 
only; it was a mining territory. The discovery of gold brought people hero, but their 
only object was milling for gold. That time 18 now past, and in connection with the 
mines there arc small agricultural settlements in the mountains, and the value of these 
agricultural places is quite as great for agriculture as they would have been for mines. 
I think the prohibition on these reserved lands should bo removed, and I think they 



PUBLIC LANDS. 15 

should be taken up according to the desire of the locator, either as agricultural or 
mineral lands. 

Q. Please give a statement of the facts relating to the Spanish claims in this coun- 
try which are supposed to arise from their non-settlement. Have you any remedies to 
suggest for this state of affairs ? — A. I have never had any experience -with these 
claims, not being a landholder, and all that I know about them has been learned from 
personal observation. I have never had any personal experience with them at all. I 
can merely say that in my opinion they exercise a very injurious influence upon the 
settlement of California. I wish to say a word in regard to this hydraulic mining. 
There has been a great deal said in regard to its injurious effect upon the agricultural 
lands of California and upon the harbors. Undoubtedly the mining streams which 
flow down into the valleys and which receive the tailings and debris from mines have 
been filled up, but most of this work was done in the early history of mining in Cali- 
fornia. The material which is now being washed down in the greatest quantity is very 
much heavier and consists of very much larger rocks and coarser gravel than the surface 
dirt which was washed down ten or twelve or twenty years ago ; and in my opinion 
a very large proportion of it remains within a short distance of the mines ; but the 
floods of winter scour the rivers and bring down now, and will continue to bring down 
for years to come, accumulations of past washings. If we take in consideration the 
value of the gold produced by direct washing and the value of the land that is being 
injured, the one is out of all proportion to the other. I consider that the annual produc- 
tion of gold here, from what is known as the hydraulic mining of California, does not aver- 
age less than $11,000,000 per year, while the amount of land which is being directly injured 
is very small in comparison to this. Should hydraulic mining in the mountains of 
California be stopped it would render not less than one hundred thousand people home- 
less and destroy their means of support as well as destroying eight or nine counties. 
It is probable that not less than $100,000,000 are invested in hydraulic mining in this 
State alone. I also consider that the amount of damage done by mines of this kind 
has been very much exaggerated, and that the effects of the winter rains upon the 
loose soil on the steep hillsides plays a very important part in helping to fill up the 
streams which flow through the valleys. Frequently in the winter season I have seen 
streams on which there is no mining whatever flowing down toward the valleys with 
the water yellow and almost as thick as cream from the dirt being washed down from 
the hillsides. I consider that the mud in the streams of the Sacramento and the San 
Joaquin Valleys is largely due to cultivation of the soil and the removal of the chap- 
arral and grass which naturally cover them. This is especially the case with pasturing, 
for the streams in the coast range, where there is no mining in the winter season, are 
always heavily charged with vegetable and mineral matter in suspension. In Fresnal 
and Napa Counties there are large tracts which have been filled up by means of the 
ground washing down during the winter season when the torrents are frequent. 



Testimony of G. F. Allardt, San Francisco, Cal., on the effect of mining debris on the agri- 
cultural lands and navigable waters of California. 

To the honorable the United States Land Commissioners : 

Gentlemen : My name is George F. Allardt. I am a civil and hydraulic engineer 
by profession ; have been actively engaged as such for twenty-six years, and in this 
State since 1858. My business office is in San Francisco. 

For several years past I have made a special study of the subject of mining de'bris 
and its effect upon the harbors, rivers, and agricultural lands of the State. In 1878 I 
had occasion to make a reconnaissance of the Bear River country and its hydraulic 
mines ; this year I made a detailed instrumental survey of the Yuba River and its tribu- 
taries, extending from its mouth at the city of Marysville up to the head of the hy- 
draulic mining belt in the Sierras. In this connection I have also surveyed and other- 
wise examined all the hydraulic mines located on the water-shed of the Yuba and de- 
positing their tailings into the same or its tributaries. I am enabled, therefore, to sub- 
mit a few leading facts and figures relating to this important matter that may tend 
to disprove many of the random statements and positive misrepresentations that have 
been made to your honorable committee, either by parties grossly ignorant of the sub- 
ject or by parties holding large interests in hydraulic mines. 

One of your informants states, for example, " that the value of te farming lands 
destroyed by hydraulic mining, when compared with the value of the mines, is not over 
2 per cent.," and in the next sentence he declares " that the de'bris of the mines is, on 
the whole, beneficial to farming lands." 

Now, from accurate surveys made by the State engineer of California, it has been 
ascertained that over eighteen thousand (18,000) acres of valley land on the Yuba — 
land that was once the finest bottom land in the State — have been utterly destroyed 



16 PUBLIC LANDS. 

and buried beneath the mining debris, so that now this vast area has been transformed 
into a barren desert of sand and slickings, alternating with impenetrable jungles of wil- 
low swamps. Probably as much if not more of equally good land has been similarly 
destroyed on Bear River. 

Although these lands have been exposed to sunshine and rain for years they produce 
not a blade of grass, nothing but willows and kindred semi-aquatic plants that derive 
their nourishment chiefly from the stratum of water percolating underneath the sur- 
face, and not from the soil itself. 

This gentleman further says " fully 95 per cent, of the tailings are lodged in the 
canons (gorges) or near the mines, and the remaining 5 per cent, finds its way down 
the lower portions of the mining rivers." The reverse of this percentage would be 
nearer the truth, would in fact be remarkably near the truth. From the beginning of 
hydraulic mining down to the present time the enormous aggregate of 162,000,000 of 
cubic yards of material has been sluiced out of the hydraulic mines into the Yuba and 
its tributaries, while the amount now retained in the river above the valley, or lodged 
in the canons, will not exceed 12,000,000 cubic yards. This we have from actual sur- 
veys. 

Thus, 150,000,000 cubic yards of solid material have passed the foot-hills and have 
been deposited on the bottom lands of the Yuba into the waters of the Feather and 
Sacramento Rivers, the bays of Suisun and San Pablo, and finally into the Bay of San 
Francisco. (One company alone, the Excelsior Hydraulic Mining Company at Smarts- 
ville, admit in a published circular that they have sluiced 1,800,000 cubic yards into 
the Yuba. ) 

To present to the mind this enormous mass of 150,000,000 cubic yards of material in 
a more familiar form, it may be stated that such a mass deposited on a farm of 160 
acres would cover it to a depth of 581 feet ; or, if spread evenly one foot in depth, 
would cover 93,000 acres or 145 square miles of land, and absolutely destroy the same 
for agricultural or any other purposes. 

The bed of the Yuba at Marysville is now filled up to the level of the streets of that 
city, where prior to the era of hydraulic mining there was a well-defined channel of 
clear water from 20 to 25 feet in depth. The authorities of Marysville have just closed 
a contract amounting to upwards of $50,000 for raising its levees and protecting the 
city from the further encroachments of the mining dSbris. 

The Feather and Sacramento Rivers have shoaled in a lesser degree, but still suffi- 
ciently to almost destroy their usefulness as highways of commerce. A resurvey of 
Suisun Bay recently made under the direction of the United States Coast Survey De- 
partment has developed the fact that tules are now growing at points where fifteen 
years ago there was several fathoms of water. 

The complete filling-up of this bay is a mere question of a few short years, after 
which San Pablo Bay will become the next settling reservoir, to be followed, finally, 
by the rapid shoaling of San Francisco Bay, and the eventual destruction of its harbor.. 

This result is sure to follow, the laws of nature make them enevitable, unless, indeed, 
hydraulic mining be discontinued or unless some adequate works be constructed for 
arresting the tailings before they reach the valleys or enter the navigable waters of 
the State. 

On this head our survey has given us sufficient data to warrant the belief that such 
works are not only feasible, but entirely within the bounds of a reasonable expendi- 
ture of money. 

Your informant further avers "that of the material deposited in the rivers the farm- 
ers contribute 12 and 15 yards where the miners contribute one yard," an assertion so 
palpably absurd as scarcely to admit of argument. The farming lands of California 
are exceptionably free from wash, the soil being generally of a resisting and tenacious 
character with a comparatively level surface. Moreover, nearly all the farming lands 
adjacent to the rivers actually lie below the plane of the present river banks, hence 
"farming d4bris," if any there be, must run up hill to enter the rivers. 

As to the few scattering farms in the foot-hills or on the mountains, their aggregate 
area is too insignificant to cut a figure in the case. Indeed, I have failed to discover 
any material wash in any one of them, and I have seen them nearly all in the course 
of my explorations. 

The same may be said of the washings from wagon-roads. . One of your informants 
says, " the cutting of wagon-roads along mountain sides is a fruitful source of sedi- 
ment, large masses of earth being washed down from them during winter rains." 
Now, I have traveled hundreds of miles over these mountain roads, observing them 
closely, but have found no slides or washings originating from them worthy of men- 
tion. It is evident that if the roads were subject to slides or washings to any extent 
they would soon become impassable, while in point of fact they are, almost without 
exception, in a very fair condition. And tendency to slides or wash is promptly 
checked by the owners if they are toll-roads, or by the authorities if county roads. 

Now, as to the present condition of the Yuba and its hydraulic mines. It is ad- 
mitted that during the dry season 17,000 miner's inches of water are used daily by the 



PUBLIC LANDS. 17 

hydraulic mines of the Yuba, and that such miner's inch removes not less than three 
cubic yards of material in twenty-four bours. This gives a daily total of 51,000 cubic 
yards. Fully one-half of this amount is held in suspension by the running waters, 
and carried down the river in the shape of muddy water, or more correctly speaking, 
in the sbape of liquid mud, and is deposited as before stated, partly on the bottom 
lands of the Yuba and partly in the rivers and bays beyond. That is to say, and I 
wish to emphasize this fact, 25,000 cubic yards of earth and sand, say 43,750 tons, 
are daily poured from the mountains into the valleys by the hydraulic miners. To use 
a familiar illustration, suppose it were required to transport this amount on railroad 
cars ; it would take one hundred and ten trains of forty cars each (one train every 
thirteen minutes) to accomplish the daily task. 

In the rainy season more water is used and correspondently more material is sent 
down; moreover, the winter freshets invariably clean out the canons and sweep 
away the heavier material tbat has accumulated at the mining dumps during the low 
stages of the river. The lighter material runs down with the stream, the heavier ma- 
terial rolls along the bottom with varying velocities, depending on the height and 
volume of the freshets, and in due course of time finds its way to the level reaches of 
the river in the foot-hills and the valley. 

It is estimated on competent authority that there yet remains between the South 
and Middle Yubas 700,000,000 cubic yards of known gold-bearing gravel deposits. At 
the present rate of hydraulicing this will be worked out in about forty years. The 
hydraulic miners contend that it can be worked successfully only by the present hy- 
draulic method. As it is well known, however, that the gold-bearing stratum in these 
mines, the " pay-streak," as it is called, is usually at the bottom of the deposits, next to 
the bed-rock, and that the large masses of superincumbent earth seldom, if ever, pay 
working expenses, it may seem pertinent to inquire just here whether the hydraulic 
method is really the only and the most economical process and whether the method of 
drift mining would not average more remunerative results. The drift miner, namely, 
runs his tunnel through and along this pay-streak, and brings to the light the pay- 
gravel only, from which he extracts the gold in the usual hydraulic way. As all ex- 
cavations are done by manual labor with pick and shovel, the debris arising from that 
source is necessarily limited in amount. At a liberal estimate the material taken out 
of all the drift mines on the Yubas will not exceed a half million cubic yards, the 
greater portion of which being heavy material remains in the dumps at the mouth of 
the tunnels and never reaches the water-courses. 

There are quite a number of so-called drift mines in successful operation in the Yuba 
belt, some of exceeding richness, notably those on Bald Mountain at Forest City. It 
is officially reported that the gravel extracted averages over $3 per cubic yard. 

Quartz mining is also an industry of growing importance in this section. It consists 
in exploiting a gold-bearing quartz lode, crushing the quartz in a stamp mill, and obtain- 
ing the gold by means of amalgamating pans. One of the largest and most productive 
quartz mines in the State is the " Sierra Buttes," near Sierra City, on the north fork 
of the Yuba. Over three hundred men are steadily employed in and about this mine. 
The tailings from quartz mines are inconsiderable, and their effect upon the flow of the 
rivers is scarcely appreciable. 

It remains to mention still another method of gold mining known as river mining, or 
the reworking of the old tailings in the river-beds. This class of mining is confined 
almost exclusively to Chinamen ; it creates no debris, but merely shifts it from place 
to place, and does not, therefore, enter as a factor in the debris problem. 

Much weight has been laid by the miners on the importance of hydraulic mining in 
supporting a large population, alleged to exceed one hundred thousand inhabitants. 
This figure is undoubtedly exaggerated. According to my observation, the total number 
of workmen actually employed in the hydraulic mines of the Yubas does not exceed 
1,500 all told, three-fourths of which number, probably, are Chinamen, the white men 
being engaged only for the higher grades of labor. It is but fair to name the Excelsior 
Mining Company, of . Smartsville, as an honorable exception to this custom, all of its 
employe's being white men, most of them men of family. 

On the other hand, the number of men employed in the quartz and drift mines is 
very large, all- of them, with few exceptions, being white workmen. 

The Sierra Buttes Company, for instance, employs three hundred men; the Derbec 
Company, near North Bloom-field, about one hundred; the Bald Mountain mines sup- 
port a community of over eight hundred souls. Grass Valley and Nevada City, with a 
joint population of some ten thousand, depend almost exclusively on their quartz min- 
ing industry. * 

CONCLUSION. 

In this paper I have confined my remarks mainly to the mines in the Yuba belt, yet 
th re are many extensive hydraulic mines in operation on the Feather, Bear, American, 
sltA Mokelumne Rivers, all of which are constantly pouring their tailings into those 

2 L C 



18 PUBLIC LANDS. 

rivers, thus contributing their quota toward destroying the farming lands and shoal- 
ing the navigable waters of the State. 

Viewing the whole subject of mining debris in its various bearings, and fully recog- 
nizing the magnitude of the hydraulic mining industry, and the vast amount of capi- 
tal invested,, yet a candid and impartial observer must "necessarily arrive at the follow- 
ing general conclusions : 

1st. The process of hydraulic mining is destroying the best agricultural lands of 
the State. 

2d. It is threatening the very existence of the cities of Marysville and Sacramento. 

3d. It is rapidly shoaling the navigable waters of the State, and, if continued, will 
eventually destroy the harbor of San Francisco. 

4th. Hydraulic mining, from its very nature, is destructive and ephemeral, and can 
never become a permanent or desirable industry in any community. 

5th. It is chiefly in the hands of rich and powerful corporations who monopolize the 
water privileges and thereby control all the contiguous mining ground, to the exclusion 
of the citizen miner of limited means. 

6th. As the water is made to perform the principal work of the process, the number 
of laborers employed can never be la^ge. 

7th. Justice to the farming interests, the public safety and welfare, alike demand 
that in future the hydraulic miners be compelled by law to take care of their tailings 
by means of dams or settling reservoirs, from which the water will return to its proper 
channel in a condition of comparative purity. 
Eespectf ully submitted, 

G. F. ALLARDT, 
Civil and Hydraulic Engineer. 

Ban Francisco, October 25, 1879. 



Testimony of John A. Ball, mechanical engineer and contractor, Oalcland, Cal., illative to 
agricultural and timber lands. 

The questions to which the following answers are given will be found on sheet facing 
page 1. 

Answer to questions 1 and 2. John A. Ball ; residence, Oakland, Cal. ; occupa- 
tion, mechanical engineer and contractor. I was born in 1831, in New Jersey ; re- 
moved with my father to Northern Illinois at the age of thirteen years, where my 
occupation was farming nearly all the time to the year 1862. I was in California in 
1850 and 1851. I came to this State the second time in 1862, and have farmed the 
greater portion of the time in Nevada County until I came to Oakland in 1871. 

Question 3. In 1871 I pre-empted 160 acres in Rough and Ready Township, Nevada 
County, but relinquished my rights to another party before perfecting title. 

Question 4. My living, a farmer, in Northern Illinois and in Nevada County, iu this 
State, at the periods above named, has afforded me many opportunities for learning 
the practical workings of the public-land laws. 

Question 6. Yes. The desert-land act and pre-emption laws should be abolished. 
No one should obtain public lands by any other way than by homestead entry. 

There are several enactments of this State's legislature" relating to swamp, over- 
flowed, and tide lands— lands under water — that the general government should, by 
prompt action, put an end to. 

Lands that are covered by water at ordinary low tide — navigable natural channels of 
water — and the lakes should not pass into private ownership, but should be the gov- 
ernment's property, and under its control. 

If there are any enactments by the United States that have caused a surrender or 
have ceded to any State any such lands they ought to be abolished, and Congress 
ought to, by its authority, make all such State acts null and void. 

My reasons are that by individuals or incorporate companies owning any natural 
navigable channels, harbors, or water fronts of any city or town prevents the government 
from making improvements essential for the commercial interests of the country. 
The present state of affairs in regard to the Oakland Harbor is an example of the 
evils produced. 

If said lands, uuder water, are not owned and controlled by the government there is 
danger of the government being embarrassed when engaged in defense in time of war. 

I refer you to a map of the bays of San Pablo, San Francisco, and tributaries, pub- 
lished by the State board of harbor commissioners. 

Question 7. In answer to questions with regard to the county in which I reside I refer 
to Nevada County, in this State, where I have formerly resided. The county is mount- 
ainous, lying on the western slope of the Sierra Nevada Mountains, extending from the 
summit into the foot-hills, nearly to the great valley of the Sacramento. 



PUBLIC LANDS. 19 

There are several valleys in the county of considerable size that are fertile, and very 
many small valleys, especially in the foot-hills — I mean the lands that are below about 
three thousand feet altitude. Except it be limited to a few small spots the whole county 
is mineral land — placer, deep gravel, and quartz mines. The quartz mines are princi- 
pally gold. There are some paying copper mines near the western or lower boundary of 
the county. The whole county, except small spots of bald hills and some portions of the 
valley lands, are timbered. 

The timber on the foot-hills is principally oak, with some nut-pine. The latter 
increases in proportion as the altitude is greater, until at about twenty-five hundred 
feet the oak and nut-pine begin to give place to heavier forests of yellow or Norway and 
sugar pine, spruce, balsam, &c, and at an altitude of about four to eight thousand feet 
the growth of timber is the heaviest, with considerable black-oak in some places. 

A great deal of the timber has been felled and used for lumber and fuel for the mines 
and mining towns and the adjacent portions of the Sacramento Valley farms. 

More than half of the county is adapted to agriculture. The soil in the valleys is 
very productive for cereals and vegetables. The latter requires irrigation, but the 
former does not, not even on the hill lands. The soil on the hills is generally light. 

Fruits and vines flourish exceeding well where thoroughly cultivated, without 
irrigation in nearly the whole county wherever a plowshare can find a sufficient 
amount of earth for their support. 

The rainfall is generally abundant in winter from the 1st of November to the 15th 
of April. The county ranks as first of importance as a mining county, and always 
has from the early days of mining in this State. 

Questions 8 and 9. Some lands are valuable for and adapted to either agriculture, 
horticulture, grazing, timber, or mining purposes, and others are only adapted to one 
industry. 

The present occupants (I mean the farmers) are seldom utilizing these lands to the 
uses they are, by nature, the best adapted. 

When our State shall have nearly attained its full growth in development, we may 
expect advancements in the facilities for and systems that will bring about transporta- 
tion and fares to rates so as to accommodate the warranted demands of every locality. 
We must expect these changes to take place gradually and to require considerable time. 

I think that the miner should be allowed to prospect or mine on any lands in the 
country, but should pay for all damages to the occupants before him, before he occa- 
sions any damages. 

After lands have been occupied for mining purposes and abandoned they should be 
open to the homestead settler, and he should also be allowed to take up timber lands 
that have been " skinned" and abandoned or unoccupied. 

Question 10. So far as disposing of the public lands by the government require it, I 
think there is no need of any classification of the lands in the State or the United 
States except it be to class them as either valley or mountain land. 

The government should not dispose of any lands in large tracts to individuals or in- 
corporations for grazing or other purposes, for the reason that nearly all of the lands — 
including the desert lands — that can be irrigated would be more valuable when highly 
cultivated by the aid of irrigation. It is only a question of time what systems shall 
be in vogue ; whether the owners of small or moderate-sized farms shall till the lands 
in a manner similar to that of the settling of the Western Atlantic States, bringing 
the best results to our social and political welfare, and insuring universal contentment, 
or whether large land owners shall hold and only half utilize large tracts, hiring the 
cheapest labor, thus causing the majority of our population to be hirelings degraded 
to a level with the slave. 

Suppose there is no other way of entering save by the homestead entry of 80 to 160 
acres of valley lands or 160 or 320 acres of mountain lands ; to allow each county, or 
the State, to regulate the privileges of grazing on the public domain or common. By 
common I mean land unfenced and unfilled, whether owned by the government or 
other parties. 

The grazing man enters his homestead for his home, does not say whether it is for 
grazing or what use in particular, and by the local laws he may control adjoining lands 
for grazing ; but his possession shall not debar other men from entering homesteads on 
the same, except one homestead shall not lap one over the other. 

The homestead settler to occupy the land as a bona-fide home for ten years before he 
shall be entitled to a clear title. 

I would rather the government to own the land perpetually, and the homesteader to 
have control and full use of it so long as he lives upon it as his home, and to be allowed 
to enter lands as a homestead as many different times in his lifetime as he chooses. 
His being required to occupy the land of a specified amount before he can make an 
entry provides there shall not be any confusion caused by his having more than one 
entry. 

The man who has a homestead can relinquish his rights to any one at any time, but 
the second party shall show proofs to such effect, or that the land is unoccupied, be- 
fore the government grants the second homestead on the same land more than once. 



20 PUBLIC LANDS. 

Questions 1 and 2, relating to agriculture. To describe the climate of our State would 
require a volume of writing, it is so varied in different localities, even within short 
distances. We have as desirable and as pleasant a climate in California as there is in 
the world. 

The annual rainfall in some parts of the valleys there is scarcely anything, perhaps 
four or five inches, and in some parts of the mountains the rainfall is seventy-five 
inches and often more. 

In the greater part of the State that is most inhabitable the seasons are a perpetual 
summer. The rains fall in the valleys in winter ; the snow seldom whitens the ground. 
In the higher mountains it seldom rains, but the snow falls to a great depth. In this 
way nature has provided an abundance of water for all purposes for uearly the entire 
State ; but it requires the aid of man to properly engineer and carry out a plan for a 
general system of reservoirs, and canals for irrigation, transportation, reclamation, 
manufacturing purposes, and the supplying of water for the cities and towns. 

Fifteen years ago I supposed that before this present time that a general system by 
the government would have been farther advanced than it is. The large land owners 
(individuals and incorporate companies) have fought'all legislation on the subject of a 
general system, and in fact all schemes of irrigation except where they have an indi- 
vidual interest to monopolize the water and the land in large tracts. Irrigation com- 
panies, formed of small or moderate land owners, are almost always hindered by the 
large monopolists in the lands or in the water rights. 

The snow is falling in the mountains in winter season within plain view of the farmer 
while he is plowing and planting in the valleys, and that, too, while the weather to 
him is generally clear and pleasant as summer. 

There is only a small portion of the farming lands in the great valleys that produce a 
full crop with certainty every year. For want of sufficient rain in winter the crops 
always fail partially or entirely. Annually, in spring and the early summer months, 
the water that has been stored in the mountains in the form of snow, as it melts comes 
down the natural channels through the valleys on its way to the ocean, causing long- 
continued freshets just when crops most need it but does not now benefit them. 

Often the crops along the streams are destroyed by floods in harvest time, and at the 
same time the crops on the plain or valley lands are scorched up by drought to the very 
edge of the water that is thus allowed to pass by unutilized, whereby the whole land 
should be made to bloom the whole year round, producing immense crops once, twice, or 
three times a year. 

I favor a general system of canals, under direction and control of the government, 
in all the States and Territories where irrigation and reclamation is necessary. 

When I speak of the government providing and carrying out the system of canals 
I mean the main canals and reservoirs, but not the distributing ditches. I approve 
that the government should bear the burden of providing and executing such a system 
of canals in order to place the lands under the best possible condition to be reached by 
the occupancy of the tillers of the lands themselves. But rather than the present 
course to run any longer I would say let the government devise some plan whereby a 
return shall be had for the necessary outlay incurred by moderate taxation upon the 
products of the land, each acre at its just ratio. 

Lands owned by other parties than the government should be, by special laws, 
taxed to bear their proportion. 

The water to be free to all, and under control of the government, except each dis- 
trict elect its officers for distributing and allotting to each consumer. 

There is an abundant supply of water if properly stored, as the surface of the 
country provides many sites for reservoirs. 

Question 6. Throughout the State, where wheat is a common crop, if it be properly 
planted twenty to thirty inches of rainfall during winter will insure a crop ; but if 
the land is plowed deep two or three times for each crop, much less water is required. 
Twice plowing is the best practice to remunerate the farmer for his labor. 

If water is flooded over the ground repeatedly without, the soil being stirred to 
loosen it, while in proper condition after being irrigated, the soil settles and bakes by 
the heat of the sun, and therefore the land is seriously injured. But if properly pul- 
verized after each irrigation, when the soil is not too wet the process will tend to 
enrich the land, because it decays the vegetable material that is mixed with the soil, 
and also other substances to decay, especially where, in some localities, the soils have 
never been thoroughly wetted by the rains — for example, the desert lands of Kern 
County. In the localities where fruits and vines thrive well they should not be irri- 
gated in summer. If the ground is once well saturated with water in the winter by 
the proper stirring and keeping the weeds from growing, to prevent their taking the 
moisture from the soil, leaving it loosened deep, it will retain sufficient moisture all 
through the dry season. 

The fruits are far better in flavor, and as well developed as can be raised. 

Question 9. As the ditches are now managed it is very wasteful and unsatisfactory 
to those using the water. No systematic regulations in regard to waste. 



PUBLIC LANDS. 21 

Questions 10 and 11. About two-thirds of the streams leading into the great valleys 
of the State are taken up, so that late in the dry season the canals are not more than 
half filled. But for eight or nine months out of the twelve the canals do not take all 
the water that flows down the natural channels. 

The annual percentage of water taken up by the canals is small compared with the 
whole amount shed from the Sierra Nevada Mountains. 

The present system of taking the water by individuals and companies causes numer- 
ous conflicts. They all seek their own individual or local interests. Strife and con- 
tention is the rule under the present system. 

Question 14. As homesteads only, as before stated. 

Question 15. Up to the present time the foot-Mils are principally occupied for graz- 
ing, and are the most valuable for such use of any lands in the State, but as the 
country advances the present occupants, or others in their stead, will use the lands 
for the purposes to which they are best adapted— for the vines and fruit trees. Then 
the stock-grazing would appear insignificant. 

Question 16. There are no families or occupants in the foot-hills that depend solely 
upon stock-raising for their support. Generally they cultivate small or larger tracts 
of the valleys or hills and graze the adjoining hills. They raise vegetables, fruits, 
&c, for their own use, and often to sell, and generally hay and other feed for their 
stock in winter. The storms are severe, often cold rains and snow, the latter lying on 
the ground sometimes several days. It certainly is cruelty to animals to wholly depend 
on the range for their stock to subsist upon. 

Questions 17 and -18. Perhaps twenty or twenty- five head. If the cattle had the 
range to themselves exclusive of other stock a square mile would not support more 
than thirty head. The grasses have diminished in consequence of being overstocked. 
The wild oats and some other varieties of grasses have nearly disappeared. 

Question 19. They seldom fence their ranges. Stock can be safely kept inside of 
good fences on ih<d ranges, and there is generally an abundance of material to make 
the fences on the land, but it will not pay the large stock man to keep up good 
fences for the range only. 

Question 21. Springs only. 

Question 23. A few sheep will diminish the feed so cattle will not do well on the 
same range. 

Question 25. There are many conflicts. Generally the local laws do not allow sheep 
to be a free commoner. 

Question 26. I think the large herds comprise about one-half of the amount of stock 
in the county. 

Question 2, relating to timber. None planted except for ornamental use, &c. 

Questions 3 and 4. The heavy timbered lands are chiefly in the higher mountains, 
and are valuable for lumber, which, to make it remunerative to any one, must be trans- 
ported long distances to find a market. 

These lands perhaps might better be classed as milling timber lands, and the timber 
be sold to those who will make lumber of it and supply the market. But the timber 
ought to sell at a higher price than five or ten dollars per acre ; the timber to be 
sold, not the land; the purchaser to have x>ossession only sufficient time specified 
for him to cut the timber, and then vacate the premises. 

My object in advancing this idea is to preserve some of the timber that is the 
most valuable, for future generations. Some of the trees in these forests were stand- 
ing just where they do now, but were smaller, when our Saviour was on this earth. 
It is wrong, I think, to encourage any system that might cause men to make oath to 
settle upon those lands for a home, when in reality his desire is to aid some rich man 
or company to obtain the privilege to cut the timber without its costing anything. 

Questions 5 to 7. The second growth of timber is very rapid. The pines, cedar, 
spruce, &c, come only from the seed, which seem to be plentiful when the large 
trees have been taken off the land. They spring up thickly together, and soon make 
valuable timber for common lumber, fuel, &c, but not of the quality of those that 
have had a growth of two thousand years. 

Penalties should be enforced for wasting the timber or for depredations on the tim- 
ber lands, but windfalls and deadwood should be free to any one. 

Question 9. Penalties could be more efficiently executed if under the care of the 
government. 

I will write some suggestions with reference to mining on the government and 
other lands as soon as convenient. 
Respectfully, 

JOHN A. BALL. 

Note. — The writer of the foregoing remarks having long since been awakened to 
the importance of a general system of irrigation has been prompted to devote the last 
thirteen years of his life to endeavor to introduce steam machinery for excavating and 
dredging, the results of which are to some extent known. 

J. A. BALL. 

Oakland, October 18, 1879. 



22 PUBLIC LANDS. 

Testimony of Aaron Bell, late register of Shasta land office, California, relative to ag- 
ricultural, mineral, and timber lands, and irrigation. 

Mr. Aaron Bell, late register of Shasta land office, testified, as follows, October 2, 
1879 : 

I have been in the United States Land Office ten years and over, and register of this 
office for six years past, until within a month or two, resigning the office to accept a posi- 
tion on the bench. The general character of the unsold public lands in this land district 
would be mountainous timber land, with some good agricultural land, what you would 
call second and third grade agricultural lands. I would say that there was one- fourth 
of it agricultural land. These agricultural lands are adapted, to the raising of anything 
that is raised in this climate, as wheat, barley, oats, hay, fruit, and vegetables. The lands 
in this northern country are extra lands for wine culture. It is very good also for 
cereals. Wheat would average twenty bushels to the acre, annual crops. We do not 
have to resort to irrigation except for vegetables. The average rainfall this year was 
about eighty -four inches. Last year there was ninety- six inches and over. That 
would not be so all over the district. There is a greater rainfall in this place than 
there is probably in any other section of the State. Some valleys in this district will 
raise more wheat than is stated above. For the purpose of irrigating vegetables, 
water is obtained out of torrent streams. There is but little difficulty arising out of 
the adjustment of water rights. The laws of this State generally regulate the supply 
of water. In order to obtain a water right in this State, it is requisite that a person 
shall post a notice at the intended place of diversion, and in that notice he must state 
where and for what he is going to use "the water, and the size of the ditch, which is 
measured under a four-inch pressure, miner's measure ; and he is' required to com- 
mence work on the ditch within sixty days from the time of posting the notice, and 
also required within ten days from the time of posting the notice to record a copy of 
it in the county recorder's office for the county in which the water right is situated. 
He must then, within sixty days, commence work on the ditch and work continuously 
until completion, except he be interfered with by deep snows. These things give him 
a right to the use of the water against all other parties. 

Question. The unlimited right ? — Answer. Yes, sir ; against every person excepting 
the United States. 

Q. Can he take it in any quantity that ditch will flow and use it for any purpose? — 
A. Yes, sir ; if he is the first locator he can. He must make the use of it that he stated 
in his notice. When he ceases to use it the right ceases, but he can use it at his own 
discretion. The oldest location carries with it a right to take as much for actual use 
as the locator sees fit. In other words, he has the exclusive right to whatever water 
hfs ditch will flow. He cannot enlarge that ditch afterward, as against subsequent 
parties. If there is not water enough to furnish that first man with water for artifi- 
cial purposes, as against the second person wanting it for natural purposes, he can use 
all the water his ditch will carry. The use indicated is not necessarily accompanied 
by the ownership of the land. It would be possible for a party, under the State law, 
to take up the whole stream without acquiring any land, and deprive any person pur- 
chasing laud from the United States of its use without himself owning any land. 
There are some considerable bodies of public land in this district which are rendered 
useless to purchasers unless water privileges are purchased from the owners of ditches. 
About one-third, if not more, of the lands remaining unsold in this district are what I 
would call timber lands, and about nine-tenths of the land in this district is still unsold. 
It is mostly mountainous land that is not fit for any purpose or use. Some might be 
used for the purpose of pasturage but a great deal would be of no use whatever, being 
rocky and barren, having neither timber nor grass upon it. Nearly one-fourth of the 
land unsold would be in this condition. About one-tenth, or very nearly one-tenth, 
of the lands in this district are non-mineral in character. 

Q. How large a part of the district has been reserved, by withdrawals, for mineral 
purposes ? — A. I caunot say any of it has been withdrawn for mineral purposes in this 
district. 

Q. Does not this fall within the gen oral belt of reservations made for mining pur- 
poses, as designated, which would put the onus of proof upon an agricultural appli- 
cant ? — A. That is so as regards the whole district. Applicants for agricultural 
claims are required to file au affidavit of the non-mineral character of the land. 

My experience in connection with the administration of the land laws leads me to 
the opinion that at the present time the existing land system is not tho best that could 
be adopted as regards this State, in the matter of restricting sales to agricultural set- 
tlers in one-hundred-and-sixty-acre tracts, for the reason that the better portion of 
agricultural lands have already been taken up and the remainder that are agricultu- 
ral in character are of a second and third grade, and a great deal would be classed 
perhaps as more valuable for grazing purposes than any other. For grazing purposes 
one hundred and sixty acres of land is not enough. That amount would be totally in- 
adequate. 



PUBLIC LANDS. 23 

Q. Under a system that purports to extend 160 acres only to a settler, how many 
different claims can a man in fact get? — A. He can get a homestead of 160 acres and 
a pre-emption of 160 acres more. There is but little land in this district that could 
he taken up under the timber culture act, because land destitute of timber would be 
hard to find. I do not know of any desert land. As regards additional homesteads a 
man may locate them without restriction, and so with Sioux and Valentine scrip. So 
that in fact, under the present law, there is no bounds (except a money availability) 
to the amount of land a man may acquire. I think it would be best if the govern- 
ment should take away the restriction as to the amount of land and the whole land 
in this district should be reduced to one dollar and a quarter per acre. The lands act- 
ually valuable have been bought up at $1.25. I think a system of putting the land up 
at a fair valuation would work more advantageously to the poor man than the present 
one does. Under the present system a poor man can only acquire 160 acres, while a 
rich man may acquire as much as he pleases. Up to the present time I think about 
one- third of the filings made in this office or a little over that number have been con- 
summated. A great many of the balance have been abandoned. Unless it was the 
intention of the government to give settlers the right to take more than one claim, or 
320 acres of land, I do not think that there would be any occasion for both the home- 
stead and pre-emption law to remain in operation. Were one abolished, and the 
amount of land represented by both given by the remaining one, it would be better 
for the settler. 

Q. Were any of the lands in this district offered at public sale; and, if so, at what 
time and in what proportion ? — A. They were offered from 1859 up to 1867, and there 
is now a little offered land remaining unsold. The lands sold since this office was 
opened have been in very small quantities. I do not know that we have sold over 320 
acres to any one person, but there were entries made here before this office was open, 
by parties, in large quantities. I am of the opinion that a system of private entry 
would not tend to create a monopoly of lands — at least such as are in this district. 

I do not know of any special benefits to be obtained by the present law requir- 
ing settlers to advertise in newspapers. I think it puts them to some trouble and ex- 
pense without any corresponding good to the settler or to anybody else. They have 
to pay the printer for the publication, and the whole expense of advertising the pub- 
lic lands has ranged from three to ten dollars. My idea is it is an imposition of an 
expense without corresponding benefit. 

As regards the cancellation of a homestead entry, I could never see any necessity 
for sending the case away from the local officers, who generally have the whole matter 
before them and understand it fully, when it is canceled ; that is, unless there is a 
contest. The present system tends to speculative frauds, and the parties who initiate 
an attack upon an abandoned homestead do not always get the homestead : other par- 
ties frequently step in and get the benefit of it. I think the law should give the person 
who makes the application to have the homestead canceled the privilege of making 
the entry for, say, ninety days. If it is necessary that it should be passed upon at 
Washington, his application could be received subject to the cancellation, and the 
application dated back. 

A great many of the mineral lands here are placer and lode, the greater portion 
being placer. It is deep gravel mining — principally deep hydraulic mining. They 
have some difficulty in hydraulic mining as regards dumpage, by reason of running 
the tailings on other people's land. Those difficulties are generally settled in court, 
and the courts here generally give the parties the right to an outlet and the right to 
dump tailings on the land of another, if they are satisfied they could not utilize the mine 
without such right, by paying whatever damage they may do. Most of the dumpage 
of tailings is on lands totally inadequate to cultivation, but not having mineral under 
them they are only subject to agricultural entry. Some provision should be made in 
this State for selling agricultural lands. It would greatly facilitate the sale of placer 
mines. I know of cases where there have been suits between the agriculturists and 
mineral men arising out of this kind of difficulty. Sometimes the tailings are run on 
quite good agricultural lands. As regards the inter val between the dumpage and the 
mine— where the agriculturist takes up the land — it is generally done to blackmail 
the mine ; but I do not know of any such in this district. 

I think that it will be better to abolish the local customs and rules under which 
miners commence their titles, because there often is a different custom and rule in 
different places. Take the records of a given district — at one time they have all been 
written out, but they have become lost or destroyed, and one can hardly know what 
they are, and the local records should all be abolished. The districts are all the way 
from a mile to six miles square, just as the miners happen to take the notice ; so that, 
under the present local laws and regulations, it is possible for a space of six miles 
square to be subjected to a new system of laws adopted arbitrarily by men to subserve 
their own purposes. There is no guarantee for the security of the records kept by the 
recorder. There is no provision in this State for the transfer of the custody in case of 
his death or departure, and no security against their destruction or manipulation; 



24 PUBLIC LANDS. 

and yet, under the present system, the United States has to accept any certified copy 
of that record as the whole foundation of a claim, which I think is a great absurdity ; 
and in my judgment the whole thing should he transferred to the United States and 
let the parties commence there in the first instance. It would he best, and avoid 
unnecessary conflict between miners, to require them to commence with an official 
survey in the first instance, so as to avoid any overlapping of mines, though there 
should be some provision to make them as little expensive as possible. It would be 
well to provide by statute what the cost of survey should be. The usual expense of 
a survey now varies according to what a man sees fit to charge. It runs from twenty 
to forty, and even to sixty dollars. 

In cases of controversy arising between claimants to land or mineral claims, I think 
they should be adjusted by the Land Department. It would be a proper place and a 
great deal less expensive to parties, and nine out of ten would prefer it. I have no idea 
of the period of time it takes for the courts to settle such controversies, though I know 
of some who have been in the courts for the last six months and no decision reached 
yet. It is quite costly to many, much more so than it would be to contest a case in the 
Land Office. The jurors who pass upon a case are likely to have their views in the 
matter — the district court here, for instance ; the only thing they decide is as to the 
right of possession. In fact I have known cases to be tried when I knew that neither 
one of the parties had complied with the United States land laws in locating their 
claims or in working them, and the courts will decide such a one is entitled to posses- 
sion, and he comes in and files the judgment of the court and gets a patent without 
complying with the regulations and the laws at all. If the same party had undertaken 
to come here and make proof that he had complied with the law, he could not have 
done it. 

Q. Do or do you not see any reason, Mr. Bell, why the mineral lands should not gen- 
erally be sold in the same manner as agricultural lands, in sectional tracts? — A. I 
know of none. I think it would tend to prevent litigation and render mining very 
secure. 

Q. Are there any mines in this district that would be imperiled by restricting them 
to their side lines, provided you gave them sufficient tract to protect them in ordinary 
deep mining ? — A. I know of none. Deep mining has not progressed here very far. I 
do not suppose there is a mine in this district being worked that is one hundred feet 
down on the vein, and even under the present law twenty-one acres would protect 
them for an indefinite period. There is often much hostility between lode claims 
where they cross each other, as they often do in various directions. The angle at 
which a lode dips in this district varies considerably. They have no uniform dip. 
There are no flat lodes ; I think all are true fissure veins. 

Q. What is your opinion as to the applicability of the timber laws to the public 
uses and to governmental interests in the future ?— A. I think this act for the sale of 
timber lands is a very good one. However, they have never taken advantage of it in 
this district. I do not consider the law inopportune unless for a man who is engaged 
in the tiruber business, and in that case he should be allowed to purchase more than 
one hundred and sixty acres. That is the only objection I have to that law. There 
is no doubt that this law by giving permission to cut timber for purposes of mining, 
domestic, and agricultural uses tends to create an unlimited trespass under the color 
of law. There are no means of determining the character of the lands except by un- 
supported evidence. These things have been called to our attention, but we could not 
tell whether it was mineral or not, and without proper complaint to us we can take 
no notice of it. 

If the effort was made to enforce the law for trespassing upon mineral lands, I think, 
as a general thing, the effort would substantially fail ; either by reason of the infirmities 
of the law or by lack of jmblic sympathy. As a general rule the efforts on the part of 
public officers to enforce that law would be inoperative. 

I think the timber lands would be better protected if they were reduced to private 
ownership. I am satisfied there would be less waste and destruction. In this country 
fires are set and destroy much timber. It is hard to tell how they originate. They 
destroy thousands of acres of timber lands, and no one feels interested in trying to stop 
them. This summer I traveled over a place where miles of timber had been destroyed 
by fire. I do not know how long it takes timber to reproduce itself in this section. 
The timber is generally pine; some sugar-pine and white and yellow and spruce pine, 
and some fir. There have been large bodies of these timber lands taken up by addi- 
tional homestead entries in th'.s district, and also by the agricultural college act of 
this State. Titles to many of these locatious have been secured by patent under the 
homestead right, but under the agricultural college act I do not know that any have 
been secured. 

Q. What would you think of reserving alternate sections of valuable timber to the 
United States and selling the timber on the others, reserving all title to the soil? — A. 
I think that would work ; but, as a general thing, the land here is not worth much 
after the timber is taken off. It might be valuable to the government to reserve it 



PUBLIC LANDS. 25 

for the protection of growing timber upon the same land. I think a person would get 
as much for the timber as he would for the timber and land. The mines are usually 
located among the timber. It would therefore be necessary sometimes to insert a 
reservation of the mineral, even though the land were sold ; otherwise you would be 
disposing of the mineral lands while selling the timber. In other words, reserve the 
right for miners to prospect and develop the lands the same as now. There is no doubt 
but what there is a great deal of land that people would want only for the timber, 
and would pay as much for the timber as for both the wood and land. The timber in 
this district is generally marketed at Eed Bluff, carried there by flumes, and I think 
at Tahama and Chico, and it is generally shipped, from there by railroad. 

Q. Can you suggest any ways in which the administration of the settlement laws 
can be made any more economical and expeditious for the benefit of settlers, either by 
the new law or a modification of the present system ? — A. I think the buyer could be 
more readily accommodated by selling the land at private entry, or a portion of it at 
least. If they were sold at private entry they might select the amount for themselves 
to prevent their getting into the hands of monopolies, though in this district it has 
not generally had that effect where large bodies of land were sold. I do not think 
that idea of monopoly is a practical danger. If a person sought lands for speculative 
purposes he would almost at once seek customers, and would be more active even than 
the government would be. My opinion is, taking into consideration the lands in this 
district, that there would be no danger in throwing them open to private entry. I 
think it would be a good thing, and I think that the price should be reduced to $1.25 
uniformly. At present the price of $2.50 per acre is too much. The land is not worth 
that. The bulk of lands in this district, forty miles wide, are within railroad limits, 
and are only subject to entry at $2.50, the even sections. I think it would tend to the 
more speedy development of the public lands if the government could make arrange- 
ments with the railroad companies to take the land on one side of their roads, or aggre- 
gate the lands on each side into alternate blocks. It is often the case now that a party 
does not buy the government section because he does not know at what price he can 
buy the railroad lands adjoining. A system of alternate sections between the Govern- 
ment and the railroad tends to prevent the sale of lands rather than to facilitate their 
disposition. It would be much better for the railroad and for the government to each 
get their lands in a body. 

I would suggest the following : There are great masses of lands in this district and 
other districts in the State in which there are some mineral. Some portions of these 
lands might be more valuable for agricultural than for mineral purposes, but it is all 
returned as mineral land. I think such land should be disposed of to the settler with- 
out requiring proof of its character, and let him do with it what he pleases. The set- 
tlers are often put to great cost and expense in disproving the alleged mineral char- 
acter of lands they desire to possess, and I believe they should be allowed to pre-empt 
a homestead, or purchase it without inquiry being made whether it was mineral or not 
in character. I think it would be better for the government, either when it surveys 
the land or in some other practical manner, to classify it and afterward to stand by 
the classification, although it might not be right. It would still be better for the gov- 
ernment interest and cheaper for the settler. 

Q. Under the present system, do you, in point of fact, pay any attention to the clas- 
sification made by the surveyors ? — A. Yes, sir. For instance, they return a towns! ip 
as mineral land. A homestead applicant comes in to make an entry, and we do not 
allow him to make it until he disproves the mineral character of the land. As a mat- 
ter of fact, we allow the surveyor's official report to be put on trial at the instance of 
any person who attacks it, although the surveyor is sworn to the correctness of it ; it 
only throws the proof on the other side. Under the present law, I do not know how 
a classification established by law upon reports that were not proven to be fraudulent 
would work, but I think it would be beneficial as a general thing. The lands here 
are put upon the market at $2.50 per acre, which is the same price that we ask for 
mineral lands for placer mines, and I never could see any good reason for putting the 
settler to the expense of disproving the mineral character of the land when he has to 
pay the same price for it as though he was buying it for the mineral. I think that 
part of it should be abolished. 

Q. In your judgment, would or would it not be well to cut off these possessory min- 
ing titles and fix some limit of time within which claimants must consummate their 
titles? — A. I would say that when a mining claimant makes his application there 
should be a time set within which he could make his final proof and payment for the 
claim. As it is now, he makes his application, which withdraws that land from sale 
or entry, and never pays for it, perhaps. There are many such cases on file in this 
office now, and perhaps the lands involved in them will never be paid for. 

As regards placer mining, I would make a rule that where a man works a claim con- 
tinuously he should be required to pay up within a reasonable time, but where the 
claim is of little or no value they should not be required to acquire title of the United 
States at once. The government price for the land is a small price, and I think a man 



26 PUBLIC LANDS. 

should pay for it ; and while there should be some limit to the time a man may work 
a mine without paying for it, and the government should he liberal to him in the way 
of time, just as they do in pre-emption and homestead cases, he should not be allowed, 
to keep the land for any considerable time without compensating the government. I 
think it would be well if a new law was introduced to fix some limit of time within 
which all these old claims should be consummated or else wiped out, or some similar 
arrangement made. 

Q. Is it very expensive to mineral claimants under the present system of making 
out their abstracts of title ? — A. I think it is ; and I think it could be simplified in 
some way. So far as filing their abstracts of title is concerned, I never could see, for 
my part, the necessity of doing that. For instance, a party comes in and makes an 
application, and the names of claimants are set forth in that. In adverse claims, 
parties are required to come in and file their adverse claims within a certain time. If 
no adverse claims were filed, and the parties desired to push the matter to conclusion, 
the idea would be to allow them to made the entry without going to the expense of 
making up their showing. That publication, without conflict on the part of others, 
should be sufficient evidence of their possession of a mine. 



Testimony of C BielawsM, draughtsman in United States surveyor- general's office, San Fran- 
cisco, Cal., relative to surveying the public lands. \ 

United States Surveyor-General's Office, 

San Francisco, Cal., October 17, 1879. 
Honorable Public Land Commission appointed by act of Congress approved March 3, 1879: 

Gentlemen : Having been asked by you for my opinion about the system used here- 
tofore of surveying the public lands, and for some suggestions for improving the same, 
I beg to state : 

1st. That the present rectangular system, if faithfully executed in accordance with 
surveying instructions, is the best and most economical one to prepare vast and sparsely 
populated lands for settlement. This system has been tried for a long period of time, 
and the simplicity of its construction, as well as the practical way in which it exhibits 
the boundaries of the lands subdivided, made it so familiar and. I may say so useful 
to our people, that it has become a part of their elementary education. 

2d. If this system is faithfully executed, the four miles bounding every square mile 
will be found so well blazed, when passing through wooded wilderness, in all cases so 
well marked every half mile by substantial and prominent corners, and their topography 
as well as the quality of the land generally so well described, that everybody in search, 
of a new home, and provided with a few notes obtainable at the land offices, can easily 
follow the same, and in such a way find out by himself which parcel of land will best 
suit his purposes. 

3d. To require more extended topographical details in the survey and a more scien- 
tific research about the quality of the soil and other resources of the land than the 
present system prescribes, would double or even treble the expenses of the same with- 
out any remunerating practical results for the settler. 

And besides that, I am of the opinion that minute topographical surveys and other 
scientific researches, except along the coast for navigation purposes, should not be 
made by the United States in the subdivision of public lands ; and that they should 
properly be executed by the people of the State in which these lands are situated. 

As soon as a State becomes sufficiently populated, it certainly will not omit to de- 
velop its resources and institute geological surveys, irrigation schemes, and settle de'bris, 
questions, as California is trying to do now ; and its counties will gladly pay for accu- 
rate topographical maps and a true classification of the land for the sake of a just 
taxation. 

4th. All the United States should do in leading the way of progress is to spread 
over the whole country a system of large trigonometrical triangles, the points of winch, 
carefully determined as to latitude and longitude, should be permanently established 
on prominent landmarks, and their position and description communicated to the 
respective surveyor-generals. 

This triangulation system, I believe now partially in process of execution, combined 
with a general scientific research, will form a substantial basis to connect the public 
surveys with and to correct the unavoidable geographical errors made in the latter. 

5th. Having thus expressed my opinion about the merits of the present rectangular 
system of surveying, I now come to answer the question asked mo: 

Which way I thought best to execute the same, by salaried surveyors or by surveyors 
under contract ? 

My answer is, by surveyors under contract, controlled in the execution of their field- 



PUBLIC LANDS. 27 

work by examiners of surveys. These examiners should be appointed and paid in such 
a way that they can fulfill their duty independently of all outside influences, and 
should be selected from experienced public-land surveyors of well-known ability aud 
integrity. 

The main reason why I prefer the surveys to be executed under contract is that they 
will cost half or two-thirds less than those made by salaried deputies. 

The salaried deputy must be paid the whole year around if employed in the field or 
not. The cost of the outfit of his party, of -surveying instruments, assistants' wages, 
board and traveling expenses, repairs, &c, will amount to a great deal more than the 
price paid to the same deputy for the same amount of work done as a contractor. As 
such he will use the greatest economy in his expenses, push the survey ahead with all 
energy, and finish it in a great deal less time than when acting under a salary. 

There is another reason why I prefer the contract system, and this is that it can 
happen that some of the salaried deputies are found out as unfit for the place and that 
their surveys are proven to be as erroneous as those of some deputy contractors. What 
other remedy remains but to dismiss the salaried deputy and appoint somebody else to 
do work over again % Whereas the bad work of the contractor will not be certified as 
being correct by the examiner, and therefore not approved and not paid for. 

6th. It cannot be denied that some of the surveys made in this State are defective ; 
but in justice to many of the deputy surveyors in California, whose contract surveys I 
examined and platted since 1854 to the present time, I must add here that a consider- 
able portion of their work executed at that early date in several parts of this State 
still exists, and witnesses to the faithful performance of their work, although made 
under such imperfect control as was practiced then ; and as it also must be acknowl- 
edged that the later surveys were executed in a far better way than the earlier ones. 
I do not see any necessity to recommend changes or improvements in the establishment 
of corner monuments. Those set in strict accordance to the surveying instructions 
will last many years if not destroyed by mischief. 

7th. I think that from two thousand to three thousand townships have been sur- 
veyed in California, many of which are fractional. Of this number about two-thirds 
are settled upon, some only partially. 

8th. To my knowledge some of the Mexican grants in this State have been, on a 
second survey, largely increased in size. I do not know the reason why. 

9th. I believe that only a few Mexican grants remain unsurveyed; but there are 
more not patented yet. All these cases should be promptly settled in order to finish 
the everlasting disputes about land titles, the uncertainty of which disturbs the prog- 
ress of our State. 

10th. As to the prices paid by the government to contractors for surveys, there are 
higher and lower ones for the same kind of surveys made on different ground. In the 
mountainous, heavily timbered, and brushy parts of the State the prices are $16 for 
standards and meridians, $14 for township, and % 10 for section lines. In open valleys 
and rolling, open hills the same lines are paid $10, $7, and $6. It is my opinion that 
even the highest prices are too small a compensation for the faithful survey of the 
part of the State yet to be surveyed. This is mostly mountain land broken by pre- 
cipitous canons, but containing many fine valleys, inviting settlements, excellent graz- 
ing lands, and very large tracts of valuable timber. Appropriations for surveys are 
small; and as the number of surveyors seeking contracts is increasing every year, the 
consequence is that only small contracts can be given out, in the execution of which 
the contractor is subject to heavy expenses in preparing his outfit and paying his 
assistants, while the rough character of the country he has to penetrate and survey 
obliges him to make but a very slow progress in his work. 

11th. There is one more point to which I wish to call the attention of the honorable 
Public Land Commission, and this is the office of the United States surveyor- 
general of California. Please to get a good insight into the amount of work per- 
formed in this office, and ask how much work is left undone for want of clerical force; 
and I am certain that you will join me in the conclusion that the slow progress in the 
settlement of many kinds of surveys, of which California justly complains, cannot be 
attributed to want of industry andzeal of the clerical force of this office, but solely to 
insufficient appropriations made by Congress for the same. 
I remain, respectfully, your obedient servant, 

C. BIELAWSKL 
Draughtsman in United States Surveyor- General's Office. 



28 PUBLIC LANDS. 



Testimony of John Boggs, of Colusa, taken at San Francisco, Cal., relatite to classification 
of the public lands, timber, and irrigable lands, water rights, pastoral and mineral 
lands. 

John Boggs, of Colusa, Cal., testified at San Francisco, October 10, as follows : 

I have lived in the State a little over thirty years. I have been engaged in farming 
and grazing, and have dealt some in lands and know something of them from experience 
and from observation. I have traveled nearly all over the State, and been in nearly 
every county. 

Question. What would be a proper classification of the land under physical circum- 
stances? — Answer. There would first be the arable land; that which would produce a 
crop of cereals without irrigation, and which lay in the the northern part of the State. 
Agricultural lands ; that is the lands without irrigation, lands upon which crops can 
be raised with safety, without relying upou irrigation ; they lie all north of the San 
Joaquin Eiver, excepting a strip upon the coast that is watered by the fogs. Then 
there are the irrigable lands — those that lie in the San Joaquin Valley, and extending 
down into Arizona and Nevada. Then there are the timber lands. 

Q. What would you do with the timber lands ? — A. I have not paid much attention 
to the timber, except in a disconnected way ; but I think it would be best for the 
preservation of the timber lands, and for their protection, either for the State to own 
them or reduce them to private ownership. There is a great deal of waste in the pub- 
lic timber now. It is not utilized as if it belonged to you or me. We would use up 
the whole tree, but I notice in the mountains that they will take some of the best 
trees and only use one-half of them, and allow the balance to go to waste, which 
makes food for fires ; and when they do take fire they burn up the whole country. 

Q. Do you think it practicable to sell or dispose of the timber lands to small 
owners ? — A. In regard to them it might be better to do so, but I hardly think it prac- 
ticable for this reason : it is very expensive to put up mills, and you have to manufact- 
ure the lumber where the trees grow. Parties putting up a mill must have some assur- 
ance that they will have sufficient material to manufacture. If it was in the hands 
of small owners the mills would have to depend upon them for the timber, and the 
small owners might form a combination and put the timber up on them ; and nobody 
can afford to put up a mill for one hundred and sixty acres of timber land, because it 
is so expensive to construct a mill. Agriculturists would not enter this land because 
they are not contiguous to the agricultural lands. California is peculiarly situated in 
that respect. The timber is generally some distance in the mountains, away from the 
agricultural lands, and farmers can buy the lumber they need for building purposes 
much cheaper than they can have a mill constructed on the hind and manufacture it 
themselves. It is a very mistaken idea that farmers that have a farm of a section or 
quarter of a section should own timber enough for building purposes. This is impos- 
sible here, because the timber and agricultural lands are not contiguous ; and then to 
have co put up expensive machinery and manufacture the lumber takes aggregated 
capital. They cannot manufacture their material any more than they can build rail- 
roads or export their farm products ; it is a business by itself. 

Q. What have you to say of the irrigable lands ? — A. The irrigable lands are in the 
southern part of the State, and I have not had much experience with them. I know 
that the land in that part of the State is of no value to the farmer without irrigation. 
I do not think our agriculturists can compete with other places, for they have to cul- 
tivate by means of irrigation. A great deal of the best wheat land is here on the low 
foot-hills, but it will be impossible to irrigate them without enormous expenditure for 
irrigation that the production of wheat will not justify. I think the small farmers 
can take out. water — that is, where it is not too far from the streams — but I am under 
the impression that it is decidedly better that aggregated capital should build the 
water ditches, canals, &c, and take out the water and take it to the farmer. Then 
the farmer can use it. There cannot be a monopoly, because in some seasons they can 
do without water ; if they put up the prices, they will do without it. I think the ditch 
companies would be compelled to sell the water for a reasonable price. I do not ap- 
prehend much danger of a monopoly in irrigation from water rights if the rights are 
granted in a proper manner. 

Q. How should these rights be granted ? — A. Well, I think it would be best, if they 
could all agree together, to havea community system of irrigation, but you will find 
in any community that have got to do it on the co-operative plan there will always 
be disagreements. You let a lot of community farmers own a water ditch, there is 
very apt to be many disagreements, and it would hardly succeed ; but if a company 
owns it and they have capital in it, and manage it as they do steamboat companies 
or railroad companies, &c, there will not be any danger of monopolies. Yet, while I 
do not think there is any danger, it would be better, if it was practicable, for the par- 
ties owning the laud to own the water rights. 



PUBLIC LANDS. 29 

Q. What have you to say concerning pasturage lands ? — A. The pasturage lands are 
far greater in extent in this country than the irrigable lands. There is a great deal 
of land that is only fit for pasturage. These lands are situated in the foot-hills and 
mountains ; the valleys in California are always, unless it is very dry, suitable for 
raising crops, except in the southern part of the State. The valleys, properly speak- 
ing, in the southern part of the State are all productive and are not now used for graz- 
ing, because there is very much sheep land that does not cost them anything to graze 
on, and which they use for grazing instead of these valley lands. 

Q. How can pasturage lands be best utilized by actual settlers thereon? — A. I do 
not know. There are grades even in the grazing lands. You might say there is first, 
second, and third class grazing lands. The first class is suitable for horses and cattle; 
the second is suitable for sheep, horses, cattle, and goats ; the third class is rough and 
rugged, and is only fit for sheep and goats. I think if some plan could be adopted to 
bring them into private ownership it would be better, for this reason : they could be 
improved and utilized, and would bring a revenue to the State and country. I think 
the grass would be better preserved. I have noticed that after the lands are closely 
cropped it only takes a year or two to reproduce the pasturage, and to get a crop as 
good as they had before. Most grasses out here are reproduced by the seeds ; but some 
by the roots, as the bunch grass. These lands certainly cannot be pre-empted or home- 
steaded in small tracts, for the reason that there are sections that you cannot get water 
on, and then nothing smaller than a section could be utilized for grazing purposes. 
They certainly ought to be sold in large bodies. Thus they should be reduced to pri- 
vate ownership ; they would be improved and would bring revenue to the State and 
government. Six hundred and forty acres would be enough for the first-class grazing 
lands ; then, after that, it would take two or three thousand acres of grazing land to 
make the equivalent of 160 acres of agricultural lands. 

Q. Are there any grazing lands where a man could live on 640 acres? — A. There are 
some few localities where they might, but it is owing, of course, to what their needs 
are. If I was going into the business of grazing I would want more than 640 acres of 
the best land, but there is a spirit that fears monopoly. It would be better, of course, 
if the stock men had a small area of irrigable land to go with the pasturage land. I 
think it would be better if the streams could be reserved, and that the owner of stock 
might raise a small allowance of grain off his farm and have his place where he could 
build his home. If each stock man could have 10 or 15 acres of irrigable land with his 
pasturage land it would be decidedly better. If such a system could be adopted I think 
it would be advantageous. 

Q. What do you think of continuing the reservation of mineral lands ? — A. I think 
in a mining district you cannot do otherwise than reserve the mining rights, but to 
some extent it would depend upon the size of the mines, as to how much timber would 
be needed to operate them. I am inclined to think that it would be a difficult mat- 
ter to so separate the timber from the land as to proserve the rights to both the timber 
and the mines. I would not like to place any impediment in the way of discovery or 
in the way of working the mines, except that I would not want to have the washings 
from the mines go into the valleys and destroy the best lands we have. They have 
destroyed a great deal of valuable land in that way. 

I should like to speak of an evil that exists under our present system, under which 
parties by throwing a brush fence around several thousand acres can hold it under a 
possessory claim and keep out settlers. I think that those who have the exclusive 
right to the land should pay some revenue to the State or to the government. As I 
understand it, most of the grazing lands are on the hills and mountains, and there are 
streams running through them. You cannot water stock very readily by digging or 
boring in the land. Whatever else is necessary for a stock farm it must have some 
water on it. I am decidedly of the opinion that it would be better if each farm should 
have a certain amount of this grazing land attached to it ; but the farming lands and 
grazing lands are so remote from each other that it would be difficult. 

I am satisfied that a great many farmers who are farming in the mountains want 
grazing lands. If they can get them a few miles off it would be of value to them and 
the two interests could be carried on together ; but the fact is, that the valleys are 
suitable for farming and the grazing lands are in the foot-hills an immense distance 
off. In a word, if you could get them together and give each farmer a small portion 
of it, it would do, for he could utilize it, but I do not think in the grazing districts 
there are sufficient arable lands for a man to be a farmer and carry on his grazing. A 
great many men, however, now have a farm in the valleys and a grazing farm twenty 
miles off. That is a very good arrangement. I think this in time would bring the 
grazing lands cheaply into the market and would induce farmers to have a farm in the 
valley and to get hold of these arid lands and use them for grazing purposes when thev 
could. 

I want to make a little additional statement in regard to the timber lands of this 
State. There is a great deal of grazing now in the mountain districts. I find that pas- 



30 PUBLIC LANDS. 

turing it really is an advantage and keeps out fires. I think that the sheep never 
browse upon the fir and pine timber ; but, on the contrary, they eat out the grass and 
undergrowth, and keep out the fires in that way. I do not think that the sheep and 
goats injure the timber in any way. It has been said that there is a tendency to de- 
stroy the young timber by grazing,<but I think it is not so ; stock would have to be very 
hard up to eat up the young trees. 



Testimony of R. S. Bradley, Nevada City, Cal. 

Marysville, October 28, 1879. 

H. S. Bradley, of Nevada City, Cal., testified as followfe: 

Question. How long have you lived in the State, and what is your profession ? — An- 
swer. I have lived in this country 29 years, and am a land surveyor by profession. 

Q. Upon what subjects do you wish to testify ? — A. What I am now about to say 
applies solely to Nevada County. The rivers run easterly and westerly, that is, the 
main streams run east and west, and between them there are ridges. Nevada County 
extends clear over to the Nevada State line, and from the summit of the Sierra Neva- 
das to the State line there is a tract of country upon which there is no mineral, 10 
miles wide by 25 miles in length. The western portion of the county, or rather the 
middle portion, is entirely a mining section, and it is about this that I desire to 



Q. What is the character of the mines?— A. Placer mines and quartz mines. By 
placer mines I mean gravel mines. 

Q. Suppose, Mr. Bradley, we speak of this land in the order of timber land, agricul- 
tural land, and mineral land. — A. Very well. The ridge between these streams to 
which I have referred, and which run to the west, are high and are covered with timber. 
The formation of the surface is several hundred feet in depth, and is what we call up 
there " mountain lava." All the ridges are covered with this lava until we approach, 
nearly to the lower end of the mountains, and as we come down in altitude the gravel 
appears on the surface, and the " lava " gives out. Extending easterly these same 
gravel deposits exist, capped by this " lava " and covered on the surface with timber. 
Originally it was very heavily timbered, but most of the timber has been cut off— more 
than half of it. 

Q. Is there a new growth ? — A. A new growth does not seem to take place there as 
readily as it does in the lower altitudes. In Grass Valley a growth is very rapid, and 
can be used for timber in the mines in a very few years. 

Q. What was your proposition about this land ? — A. This land comes under the head 
of mineral land, upon which under the laws of Congress they have made locations. 
They make locations under the law allowing 20 acres to each man. Probably the 
whole of it is located for u drift" mining, while not one hundredth of it is worked at 
present, neither by drift or any other kind of mining. It is held under the law of Con- 
gress, and without any expenditure of labor upon it either. It is held simply by filing, 
recording, and describing the proper subdivision that they claim. There are 100,000 
acres of this land, all of which is claimed in that way. It is pre-empted legitimately 
under the laws of Congress. It is done in this way : I think well of a certain locality, 
and I get my own name and your name and 8 others and place my notice on that 
ground, describing what subdivision of land it is, and place it upon record in the 
county recorder's office. I then buy you all out, and thus hold the eight locations. I 
then go on and locate another 160 acres in the same manner. It is fraudulent in one 
sense of the word, still it complies with the law. There are men up there who hold 
thousands of acres. They do not have to expend any labor upon it. The law of Con- 
gress is explicit upon that point in regard to quartz claims only ; as soon as they come 
to placer claims they evade it by saying that " if it is a local custom to put ayearly 
expenditure upon these claims, the locator shall do so ; if it is not the case, he need, 
not do so." Since '72 the local laws have not been recognized. 

Now, the point we are getting at is this : These ridges between the water-courses 
are wide and flat upon the top, in some cases 10 or 12 miles in length, and very good 
grazing land a great deal of it. The timber is pine. Now comes up the conflict.' Men 
go on this land and make their application for agricultural land ; it goes through its 
regular course, and the parties are cited to appear at the land office, and if they do not 
appear in person they must settle by affidavits the character of this land, whether or 
not it is agricultural land. The man gets an absolute patent to it. To do this he must 
actually live upon it himself. He builds a little cabin, lives there, and makes a small 
clearing. When he gets his title he moves off, and as he does not want the land he 
moves off and goes through the same process again. 

Q. Can he do that twice ?— A. They attempt it sometimes twice, and it seems to me 



PUBLIC LANDS. 31 

that a man is allowed to file on land twice. If lie does not file on it himself he gets his 
cousin or some one else to do it for him. 

Now we will go on with this subject. This conflict is taking place more and more 
every year between two classes of claimants for this land ; one wants the timber the 
other wants the mines. The deposit may be from two to six hundred feet in depth and 
the miner may have to develop it from the sides, or he may have to go down in shafts ; 
at all events, he wants all the timber for mining purposes ; he needs every stick of it. 
Now, I am not prepared to make any suggestions how the law can be modified to give 
the two conflicting interests their different titles. The miner wants the bottom and 
the timber, but he does not want the surface of the ground. If the two interests could 
be arranged satisfactorily it would be advantageous. As long as the mining popula- 
tion has to be there it must make a living as well as the agriculturists. Take the mining 
population, over here in Nevada County where there is not a foot of agricultural land, 
they cannot live on cabbages and oat hay, he must have some other commodity, so 
that any law that prohibits or curtails the mining interest stops it all, for the agri- 
culturist cannot live in that neighborhood if the mines are stopped ; they cannot haul 
their products to San Francisco ; they must sell to the miners, and if they are stopped 
they cannot live there. 

Q. Are you acquainted with the timber on this slope of the Sierra Nevadas ? — A. Yes, 
sir. 

Q. To what extent is it being cut off? — A. I am not prepared to say. I could have 
told you just how many feet is cut annually in that section of the country, but I can- 
not now. 

Q. Is there large tracts being stripped of forests ? — A. Yes. The entire area I have 
mentioned is being stripped of timber because it is available. The canons are also full 
of timber, but I do not count them because they are inaccessible. 

Q. Is there large timber tracts burned off by fires ? — A. No. There are heavy fires 
there e\ ery fall, but I never observed that they destroyed much living timber. They 
burn underbrush and fallen timber and dead logs, but never standing timber. The 
worst damage done is to the young growth of trees which are destroyed by the fire. 

Q. Is there any waste of timber ? — A. Oh, yes. 

Q. How is it destroyed? — A. The waste of timber has been caused, and is still to a 
great extent, by " shake " makers ; they have destroyed almost all the accessible 
sugar-pine. You can pas? through the woods and see it lying in every direction. The 
sugar-pine tree will have a few feet taken out of the end of it, and the rest left to 
decay. When the fires get in the dead timber burns out, but I have never observed 
that it destroyed any of the standing timber to any amount. Sometimes I have seen 
a tree killed here and there, but never to any great extent. 

Q. How do mill men get their timber? — A. They get their timber now by locating 
this land I am speaking of, as mining land. 

Q. Do they complete their titles ? — A. No, sir. In some instances they do. One 
mill in Nevada County, above Dutch Flat, holds a United States patent to quite a 
tract; others, in some instances, have obtained possession by buying the locations 
made by third parties ; others have located as mines, preliminary to applying for and 
obtaining a patent hereafter. As a general thing, they take off the timber and then 
abandon the land. This is true in many cases. 

There is still another complication upon this land. The Central Pacific Eailroad 
claims all the timber upon the odd sections, and they sell it to individuals in tracts 
from 40 to 160 acres, or any legal subdivision. They have sold considerable to saw- 
mill men. They sell it for a term of five years ; that is, the timber upon it, and allow 
a man to cut off what he can. Then, I presume, at the expiration of the five years he 
can go and buy it over again, but there have been instances where they have sold it 
after a mineral patent has been issued upon a grant. A man holds a patent and 
grant from the United States that says in consideration of what he pays he is to have 
that land with all its "privileges, immunities, and appurtenances." Another indi- 
vidual goes to the railroad authorities and buys the timber upon the same land and 
cuts it off. That leads to violence. There was one murder committed within the last 
two weeks on that account. 

Q. Are these conflicts frequent ? — A. They have not been carried so far as that, but 
there are several such threatened. I have never been driven off ground in surveying 
lines myself, but I have several times expected it, and I have heard men come jump- 
ing through the woods near where I have been and say : " Oh! it is you, is it ? If it 
had been so and so, he would have had to 'git ; from here." It has caused a great 
deal of feeling. 

Q. What do you think of the government trying to protect its timber land and sell 
its timber, retainining the fee to the land ? — A. My interests and feelings all center 
right upon this land I have been speaking of, and in that case I think the govern- 
ment should sell it directly to the miner from the surface down with all its timber. 
It seems to me that he has then a title as a basis to go on. He can sell it to whoever 
he pleases, and make his own conditions as to use hereafter. The miner really needs 



32 PUBLIC LANDS. 

the use of the surface and the timber upon it. He needs a portion of the surface for 
access to his mines. 

Q. How much of that lava-carried gravel is there in California? — A. There is 100,000 
acres in Nevada County, and there are some ridges running through Placer County, and 
they run through Sierra County. North and south of these two counties, I am not 
familiar. 

Q. What would you do to prevent the damage by debris f — A. I should say at once 
in a general way that you cannot stop this damage that is coming on to Marysville 
and this lower country unless you can reverse the laws of gravitation. I say as an 
engineer that you cannot stop the tailings and coarse material too from coming 
down, but as long as the water flows this sediment comes with it, and it will deposit 
down here ; that is what does the mischief. I do not think there is any remedy to it. 
I can convey it to the tule (too-li) lands, but it will be at the expense of taking all 
the water from the river. It would make excellent land of the tule land. What I 
say does not apply to Smartsville but above Smartsville. It must be at some point 
with sufficient grade to take out to the tule land. The dumps of the principal mines 
in Nevada County are some 1,500 feet higher than these towns. 

Q. After this exceedingly line soil called slickings is once deposited, is it easily taken 
up again ? — A. It is easily acted upon by the action of the water, if there is any grade 
for it to move down. 

Q. Does it not form another colored clay ? — A. No ; I think not, generally. I know 
what you allude to. Where hydraulic mines have a top to them of this red loam and 
this is run exclusively, that sediment looks like " adobe." 

Q. Is not all of it of that character, mostly? — A. A very little proportion of that 
comes down is of that character. There may be about six feet of that earth on the 
surface and then the remaining 200 feet or more is sand, pipe-clay, and gravel under- 
neath that. 

Q. The coarser material does not come down ? — A. Well, Mr. Saxie told me to-day 
that stones are beginning to come down more and more every year. 

Q. What would be the cost of carrying the tailings to the tule lands ? — A. The 
average cost of lumber would be $18 per thousand feet, and I cannot call to mind any 
particularly difficult places to construct a flume that would make it very expensive. 
Most of the flume would be on the ground or low tresstle-work. There is this difficulty : 
If you could take all the fall from the claim itself where it is high and the river has 
a little more fall you could dump it in the foot-hills, but the hydraulic miners must 
use the whole of this fall clear to the river itself for the sake of the gold, so you can- 
not take it out as high up as that — you cannot get height enough to be of any good. 

Q. Suppose you were to dump it into the tule swamps, would it not choke up the 
flume very soon ? — A. It would do that in many cases, but it would spread over a vast 
area. You would have to add on box after box and then divert it and add on more 
boxes. You cannot dump it in one place very long. It would take a big flume. Owing 
to the long distance up and the low grade, it would take all the water of the river. 
That is The difficulty ; it would not do to take all the water of the river. I think 
that would raise greater trouble than the debris question itself, if the river was dry at 
Sacramento. Take out all this body of water that comes in from the Yuba and Bear 
Rivers there would be very little water in the summer season, notwithstanding the 
Feather and Sacramento Rivers. The Sacramento would be nearly dry. If the tail- 
ings were taken into the first tule swamp it is true that the water would return to the 
Sacramento River above Sacramento, but it would take an immense body of water. 

1 am personally interested in hydraulic mining, but I give it as my opinion that 
either Marysville or hydraulic mining must go. 

Q. If hydraulic mining goes on, how long will it be before Marysville and the whole 
section of country is destroyed ? — A. Marysville is in danger at any time. If you 
stop mining to-day the next severe winter that comes is liable to destroy Marysville. 

Q. Suppose an injunction is procured against hydraulic mining, would the miners 
abide by it ? — A. I think they would. I think the sentiment of the miners at Smarts- 
ville is that they are willing that this thing should take its course before the courts. 
The Smartsville people say, let this thing take its course and whatever is done we will 
abide by it. 

Q. What would they do then if an injunction were procured?— A. They would be- 
come impoverished and this section would become depopulated ; but I think they are 
willing ultimately to be recompensed, if their industry is destroyed, either by the 
State or general government, for the value of their claims The government has sold 
us this land, and have recognized a certain condition of things here for a generation 
and protected us in it ; the legislature has been in our favor ; it has gone on for a 
generation, and the miners think it preposterous that it can be stopped at a moment's 
notice. They do not realize that it can possibly be done. 

Q. Is it not possible for the miners to take care of this debris and still obtain a 
profit? — A. No, sir; I dont think it is. 



PUBLIC LANDS. 33 

Testimony of V. G. Bell of French Corral, Nevada County, California. 

San Francisco, October 15, 1879. 
V. G. Bell, of French Corral, Nevada County, California, president of the Milton 
Mining and Water Company, testified as follows : 

I have lived here since 1857, 1 think. Practically, in this matter of debris there is not 
sufficient account taken of the material collected in the rivers during the early mining 
in the State. In the first place mining that was done in the State was, as a matter of 
course, done in the canons and gorges, and this went on for some years before the hy- 
draulic mining process came into vogue. I think it was in 1854 that the first hydraulic 
mining I know of was done. Prior to that time mining had been going on in the gorges 
and on the surface altogether, and a lot of alluvial material was already removed and 
stored up, and after the hydraulic process came into use the principal part of the min- 
ing had been completed. The first season that we had a flow of tailings or debris was 
in 1862-63. All old Californians will recollect that that was a very heavy season and 
it rained very hard, and the floods ensuing therefrom brought down the whole of this 
light substance and deposited it in the beds of the streams. That was the first year 
the Bear and Yuba Rivers were flooded up above their banks. This accumulation of 
course came from all this washing that had been going on from 1849 up to that time. 
This light material had accumulated to a considerable extent, but still the floods of 
1862-63 concentrated it and run it down and filled up the rivers and spoiled all the 
good farming land that there was in the country, which in our section — in Yuba and 
Nevada Counties — was the bottom land. Outside of the bottom land we did not then 
consider the land of any value whatever. In fact it seems strange to me that there is 
farming land in the country. I, as a miner,' always looked upon it as a mining coun- 
try, and I would not have taken a thousand acres of land lying between Marysville 
and Sacramento as a gift, because I looked upon it as a mining country. After the 
floods of 1862-'63 the debris covered up all that I considered farming land. This red 
land that we supposed of no value for farming has turned out to be a very good i arm- 
ing land. 

Since the floods of 1802-'63, hydraulic mining has improved and got the more 
modern appliances, and facilities for that kind of mining have increased. They have 
run long, expensive tunnels to the bottom of the channels, but during the mining of 
the early days the tops were being washed off and it was the light material from the 
surface and the gorge diggings that went down. Now we are running off the bottom, 
and it is just as much as we can do to remove this heavy, rocky material from the 
mines, and when we shove it through to the river there it stops, and whereas the floods 
of early days carried down thousands of yards of material there is now really only a very 
small percentage that is being washed down. It has practically ceased, on account of 
the heavy nature of the material. There are large fields for hydraulic mining and 
there is still a great deal of this top material which may come in, but at the same time 
a very large proportion of it was washed off at an early day, and we are now mining 
the heavy material at the bottom. 

The Milton Mining and Water Company during the last mining season spent $40,000 
in giant powder to blow up the banks and blast and break the rocks ; so that you can 
imagine something of the kind of work that we have to do in order to break up the 
rock and break up the material so as to get it into and through our sluices. 

I do not pretend to be an engineer, but it looks common sense to me that by damming 
up these river channels and by stopping the heavy debris and not letting the light 
material go through, we simply prevent albthe material that we are running down 
from going into the rivers. We have abundance of land in every section of the coun- 
try which we could fill up with the tailings. We have two large tunnels, one to the 
South Yuba and the other to the Little Yuba, about 400 feet above the main channel 
of the stream. The inclination is about eight inches in fourteen feet, or two-thirds of 
an inch to the foot, and then from the mouth of our tunnels down to the river it is in 
the descent about 400 feet. From either one of these tunnels at present the dumpage 
down of this debris is comparatively small. 

The lower country is still experiencing the effects of the old original mining done 
years and years ago. For instance, I know one or two persons who have helped to put 
in a great deal of this debris and now want to sue us for filling up the river. 

Q. What do you think about the square location ? — A. I do not pretend to be a lode 
miner, but if I was I would very naturally be inclined to think that one ought to have 
the right to follow the dips and angles. 

Q. Do you wish to say anything about the timber ? — A. No ; except that the destruc- 
tion of timber ought in some way to be stopped. The destruction of timber that is 
now going on is terrible. Timber is destroyed that is never utilized at all. For in- 
stance, there is a great deal of timber cut off for shakes or shingles ; a portion of the 
tree is used and the balance lays there and rots ; there are thousands and thousands of 
feet of timber of that kind. The sugar-pine, which is the finest timber in the coun- 

3lc 



34 PUBLIC LANDS. 

try, is being all destroyed. Still, there is a great deal of it left, and I think it would 
be better for the government to put that land into private ownership — sell it to any 
one who would come in and purchase it for milling purposes, or for the purpose of util- 
izing it ; they would take care of the timber then themselves. Very frequently it is 
the case that a miner will go out and cut down a tree to get only a few lengths, and 
in that way a great deal of timber is destroyed. The timber will be better protected 
in private ownership. 

Q. In what sized tracts would you sell it ? — A. I would sell it in tracts of 1,000 acres, 
and I would sell it from $1.25 up to $5 or $6 per acre, according to the growth and 
quantity. All the timber lands should be placed under the control of the district land 
office. 

Q. What do you think about the locators of placer claims being compelled to pay up 
within a certain time ? — A. I have had some experience in obtaining patents for placer 
mines, and I think a man ought to be compelled to pay up for his placer mine within 
a year from the day of entry. A great deal of litigation has been brought on by men 
going on to a prior location. Under the mining laws it has been a custom that the prior 
locator had original right. We have had considerable litigation from the fact that 
when we have made application for a patent some person who had probably located 
the land years and years ago, and about whom nobody knew anything, would file an 
adverse claim in the Land Office and cause us a great deal of trouble. That sort of 
thing should be done away with. 

Just here I wish to say that this whole subject of contests should be left to the dis- 
trict land office. 

With regard to adverse claims, I should say that the law should provide that adverse 
claimants should not (after a certain period) be allowed to come in and file an adverse 
claim. I would have a statute of limitation. We are fighting a case now in the Land 
Office. Our predecessors held a mine for twenty-five years, the location of which was 
made in 1853. Now there is an adverse claim filed against us. The surveyor testifies 
that there was a certain amount of work done, but he does not testify by whom this 
work was done. His affidavit does not say that the adverse claimant did it or who 
did it, and the fact is our predecessors did the work that he claims to have done. 
Now we have to go to work to show to the contrary, and it is a good deal of trouble, 
and in fact there is too much red tape about the land business. The first placer pat- 
ent that ever I got through was held up about twenty months. Since that time I have 
one that has been pending since 1873 and is still pending. The evidence is plain and 
sufficient, but it was sent up some six or seven months ago on some little technical 
point. I applied to au agent in Washington, and he seemed to expedite it along. He 
expedited it so much that my partner and I thought he did it too quickly, and that there 
was some little underhand arrangement about it. I think persons should be enabled 
to get their patents at once, and not be compelled to pay agents in Washington. If 
this matter was left with the district land officers, they could facilitate matters very 
much. I do not think these questions should be taken into the courts, but that they 
should be settled in the Land Office, as they involve matters of fact. The questions 
that arise are generally questions of fact rather than questions of law. 



Testimony of Patrick Carroll, Nicholas, Cat., relative to the effect of mining debris on the 
agricultural lands and navigable waters of California. 

Patrick Carroll, of Nicholas, Cal., testified, October 27, as follows : 

I have lived in this State twenty years exactly. I have been engaged in farming 
nearly all that time, except one winter I spent in the mines. 

Question. Where do you live now? — Answer. I live close to Nicholas; about two 
and a half miles south of Nicholas. 

Q. You are familiar with the extent of the silting of Bear River? — A. Yes, sir. 

Q. Please state what you know of the matter. — A. Undoubtedly Bear River is filling 
up to a great extent. I think Mr. Justice stated it correctly when he said that at the 
point where he lived it was twenty-eight feet to the bed of the river at that point. 
Taking it at the mouth of Bear River — and I have been familiar with it for nineteen 
years at this point — I am confident that at the present time the loss of bod does not 
exceed five feet, and probably four. This loss arises from the tilling up of the bed at 
the mouth. As I stated, I have seen the Hear River at this point when there was no 
de'bris in the river scarcely ; and seeing it now and then ever since, it seems to me that 
the tilling is more above, growing less as you descend. The tilliug has deeu decreas- 
ing to the mouth, and there there has been a loss to the bed of about four feet. 

Q. What has been the spread by this means of the flood plains? — A. I will answer 
that question by saying that the Bear River Valley is a narrow strip of land. Now, 
this portion of Bear River that is under water is not very extensive; that is, the land 



PUBLIC LANDS. 35 

on which the debris is now settling. At this point where the lawsuit has originated — 
that is, the point where the debris wants to spread out the most on to the land, and 
they have tried to confine it by levees — at this point Mr. Key's levees raise the water, 
as I think, about sixteen feet above the bed. The distance between the two points is 
about eighteen miles. In this eighteen miles the bed of the river has been raised about 
twenty four feet ; the consequence is that it has arapider current. Since the capacity 
of the river has lessened they have been trying to control the water to prevent its 
spreading. The siltings are, of coarse, damaging the crops. 

As to the character of this debris, I would divide it into two parts, the quicksand 
and that which is held in solution and carried through to the lands below. I call that 
fertile. It is not good for grasses ; but for corn and potatoes it is exceedingly good, I 
think. At Mr. Key's, where the water wants to spread out, I think the quicksand pre- 
vails ; and that is almost useless. As we come down from that point the quicksand 
drops, being the heaviest. At that point I think they have every reason to complain. 
Mr. Key is, I know, a great sufferer. He has been trying to control this water, but 
it breaks out of the levees on his tract and leaves the quicksand ; and it is impossible 
to grow grain there, for it is almost sure to be caught by the debris and lost. There 
is no question of the justness of the complaint of the farmers along in the belt in which 
Mr. Key has his range. I don't wonder that they should complain ; because the de- 
posit is there so great, and it breaks out there so much, that it destroys all the crops. 
The nearer you get toward the hills the greater is the deposit, growing less as you 
come down toward the mouths of the rivers. Last winter I differed with my neighbor. 
Without knowing that it was the business of the State engineer, I set up a low-water 
notch at a point near Nicholas. I found the water at its lowest stage, and left it there, 
to see how much the river would rise at that point. On examining it this year I found 
that the water had sunk eight inches since the previous year. 

My idea of the river debris is this: that there is a grading of the river taking place. 
The tributary streams I look upon as raising up at the upper end and getting a greater 
fall. I consider that the change of the Sacramento is merely the leveliug of the un- 
even bed, as the water does not run up and down the various irregularities that we 
find in the river. When the water comes down charged with deposits I think there 
were deep holes that were filled up. but not the whole bed of the river. 

Q. To what extent on Bear River have farms been destroyed and injured? — A. Mr. 
Key's and Mr. Brewer's farms have both been destroyed. Their lands were very well 
cultivated, but the debris has come on them so that they do not find it very profitable to 
farm their lands now. 

Q. Are there any other persons similarly situated? — A. I believe at the point above 
it is about the same way. The quicksand is so great there that they can only raise 
potatoes, and the greater portion of it is grown up in willows There is no fertilizer 
in quicksand. Generally speaking, I would say that the area of spread has not in- 
creased. 

Q. How far from the mouth of Bear River do you reside? — A. Where my residence 
is situated is about four miles from the river ; my land is next to the mouth of Bear 
River. 

Q. How far from Bear River do you reside ? — A. I live about four miles from Bear 
River ; that is my residence. My land goes to the mouth of Bear River. 

Q. Two years ago was there not a greater water plain over your section than you 
ever knew before ? — A. No, sir, I think not, because the amount of water that broke 
out was not as much as when I had no levees. In 1862 the Coon Creek and the waters 
of the Sacramento came up next to my house, but since levees were built up of 
course the volume of water cannot flow in them that could in the early days ; so that 
I claim the flood land plain has not been much extended. 

Q. Do you build the levees yearly? — A. Every year. We build the levees in this 
way : Whenever we find them trying to hold the river on both sides we build our side 
higher. We built the levees on our side first. In trying to control the streams to do 
it you must level off the easements of the river; so in that way we have to raise the 
levees, and the loss to the river comes too in this way. We have lost in the depth, 
but gained in the fall, and have a rapider current. I will explain here why there has 
to be higher levees and why the levees are broken. The water coming from the foot- 
hills around the bends of the river surges strongly up against the banks of the levees. 
The consequence is the levees are too weak and break. You can see that over here at 
Yuba City. 

Q. Where did you live before you came here ? — A. I lived on the Mississippi River to 
some extent before I came here. But I did not take any active part in making the 
levees there. I have no knowledge of the levee system there. 

Q. You said that you had land at the mouth of Bear River, and you had land between 
Bear and Feather Rivers, outside the levees ? — A. Yes, sir ; I have 160 acres, lying 
between the levee and Bear River. 

Q. Do you notice any perceptible filling from year to year on that land ? — A. On the 
land itself, yes, sir. On a portion of land that was thrown out by the levees into the 
water there was a hollow I exnect about 200 feet and that hollow is filled up now. 



36 PUBLIC LANDS. 

Q. In general, are the areas of lands that lie between the rivers and levees filling 
up ?— A. Yes, sir ; and almost already are filled up, nearly all that it ever will ; where 
the water stood 10 feet before, now it cannot stand over 2 feet, so that we have mud 
now instead of water. 

Q. And is all the land along the Bear River between the foot-hills and its mouth — 
the bottom laud — is it now in the hands of private individuals ? — A. Yes, sir ; I think 
it is now as far as I know ; I don't know of any government land except that among 
the foot-hills ; there may be some railroad lands. Whatever effect this debris is having, 
it is on private land. 



Testimony of Charles R. Chamberlain, receiver of public moneys, San Francisco, CaL, relative 
to public Ian ds, irrigation, pastoral lands, homestead and pre-emption laws, private entry, Ian d 
laws, agricultural lands, timber lands, unsurveyed lands, contests, cancellations, records, 
framing of notice, Umber unsold, timber laics, title, age of timber land, mineral lands, de- 
claratory statements, claims. 

Charles H. Chambelain testified at San Francisco, October 6, 1879, as follows : 

I have been receiver of the land office at San Francisco since September 6, 1866. 

I should say that perhaps one-third of the lands in this district yet remain unsold. 
There is very little mineral land in this district. Most of the remaining unsold land 
is grazing and timber land. The southern portion of this district and all south of the 
bay that remains unsold, reaching down to Santa Barbara, to within six miles of this 
city, is grazing land. There may be spots that can be cultivated, but principally they 
are grazing lands. 

Question. If there are spots cultivatable, can it be done without irrigation ? — Answer. 
From here down to Santa Barbara there cannot be much irrigation ; there are no streams 
that amount to anything, except in the valleys in the lower part of the district right 
along the water-courses ; there may be a little saline land that can be irrigated, but there 
are few streams on the slope toward the ocean; very little of the land in this district 
can be irrigated. The San Juan district does not come within my jurisdiction. 

Q. State, in a general way, the area of this land district. — A. It takes a southward 
line five or six miles north of Santa Barbara ; takes in a portion of Santa Barbara 
County, all of San Luis Obispo, and all of Monterey, and all of San Bunaventura. It 
runs from the line of Humboldt to the southern portion of San Bernardino and takes 
to the summit of the Mount Diablo Range on the east. 

Q. In that range you stated that the agricultural lands remaining unsold are almost 
entirely pastoral in character. — A. Very generally pastoral in character. There are 
spots that can be cultivated, but most of them are grazing lands. They graze both 
sheep and cattle. They generally calculate that it will take one acre topne sheep and 
three acres to one steer. That is north of San Francisco. It is where they have plenty 
of rain. Our average rainfall here is nineteen inches, and is more as you go north. 
South of San Francisco, taking a good season, it would be about as it is north. It 
grows bunch grass, and bunch grass grows from the roots ; other grasses grow from the 
seeds. If the bunch grass dies out the alfillaree grass comes up. When one grass dies 
another comes in next year. The grasses naturally reproduce themselves. The ground 
seems to seed itself ; that is, where it comes from the seed alone. Then we have wild 
oats in spots, but it is mostly on the coast. These unsold public lauds are very thoroughly 
used for stock. 

Q. Under what law can title now be acquired to them ? — A. Under the homestead 
and pre-emption law. There was some considerable amount that was put up at public 
sale some years ago. They cannot afford to pay very high for these lauds. 

Q. Are the pre-emption and homestead laws applicable to the sale of these lands? — 
A. Yes ; though I would increase the amouut that could be taken. I would allow them 
to take 640 acres, so that a man could support himself and family. I would require 
the land to be put to such use as it was fit for. This would require a slight change in 
the law. I would make a pastoral homestead law ; that is, a residence on the land, with 
pastoral features. 

Q. What would be the objection to allowing the laud to be purchased in different 
sized tracts, as purchasers might desire to take it in? — A. The trouble is they would 
fall into the hands of a few men. It throws the whole laud into the hauds of a few 
men who would keep out population. 

Q. Has that been the general result in this land district ? — A. I think this would be 
true in the southern portion. A whole township has been bought up there by one or two 
individuals, and this township I think is still held by the same individuals. Another 
trouble that appeared in their system was that they bought up right along the streams ; 
they controlled all the water by that means and thus controlled all the country back 
of them. By and by they found that there was danger of men going back of them 
and buying up the land along the river, above their possessions, aud then they bought 



PUBLIC LANDS. 81 

t 

up Loth the water and the land. There should be some provision by which they would 
be compelled to confine themselves to one section, and there should be some such pro- 
vision precedent to the survey of that part of the country. Up north it does not make 
any difference, because there there is plenty of water. The land should be surveyed 
in accordance with the character of the water, so as to give each lot a certain amount 
of water. I do not think that can be done now because it is rather late. If that had 
been done at an early date it would have been better for the country. From my own 
knowledge I cannot tell whether it is practicable to do this now. I think it can be 
done in some parts of the country. 

Q. Do you know of any streams where the United States has not sold the land ? — 
A. There are streams on the map, but whether there is water in them or not I cannot 
tell you now. That portion of the district is driest. The surveys were made in early 
days along the streams. The land along the streams was taken up and the back coun- 
try was left ; and now you cannot tell from the maps whether there is water in these 
streams or not. 

Q. You object to the system of private entry because it tends to create monopolies ? — 
A. Yes. 

Q. Under the present law, how much land can a man get ? — A. He can take up 320 
acres under the pre-emption and homestead laws, and he can buy from others. If they 
could raise timber, through the timber-culture act they could have another 160 acres. 
The desert-land act does not amount to much here ; if it did, that would be 840 acres 
more. 

Q. Do they require ex-parte evidence?— A. They require them to show the character 
of the land before they can locate it here. 

Q. It is done by ex-parte evidence, is it not ? — A. They never attempted it but two 
or three times in this district. 

Q. If a man offered you his application and showed you the evidence, would you not 
be obliged to take it?— A. If they m&Ae prima-facie evidence I suppose I would. 

Q He can come in and get it under that ex-parte showing, can he not? — A. I sup- 
pose he can, subject to having it set aside by the courts. 

Q. Has there ever been an instance where a man showed you the proofs established 
by law and you have objected to it? — A. There have been such cases. We have never 
bad but one or two such cases. I should refer the matter to the department. We 
refuse them if we know from the character of the country that it could not be culti- 
vated. 

Q. If I. understand you, a man can take up 320 acres of land under the homestead 
and pre-emption acts, and it is possible for him to rile on 160 acres more, and it is pos- 
sible for him to buy 640 acres under the desert-land act. He might have, say, some- 
thing more than 1,000 acres ?— A. Yes, provided he can find land suitable that would 
come within the provisions of these laws. He could not always get a desert-laud loca- 
tion alongside of his homestead. 

Q. Under the law he comes with his ex-parte evidence as to the character of the land 
and pays you 25 cents an acre ; you have only an arbitrary power to refuse that man 
his application ? — A. Yes ; that is true. It can be set aside afterward. That has never 
been attempted. 

Q. In addition' to that is there any hinderance to any man's taking any amount of 
land with additional homesteads? — A. None but the price we charge for them. I 
don't think they can afford to locate these common grazing lands. It is simply a ques- 
tion of cost ; they will be paying too high for the use of the land for merely grazing 
purposes. They could afford to use the desert lands for that purpose and pay 25 cents 
an acre for them and hold them for three years and get the use of them for the 25 cents. 
It is simply a question of a man's means and whether it will pay him as to the addi- 
tional amount of land he would get. 

Q. Under this present law that restricts the claimant to 160 acres they in fact allow 
of a system of monopolies or taking up a much larger amount ? — A. Well, the law pro- 
vides that he can, take 160 acres of pre-emption and homestead 160 acres ; that is no 
evasion. He can take up timber-culture homestead, and if he really cultivates the 
timber he has benefited the country. 

Q. Under the rulings on the homestead and existing laws can they take up any 
• amount of additional land ?— A, Under the laws they can. 

Q. What objection is there to passing a law that would enable a man to take this 
large amount of land at once ? Would not that be less expensive to the people ? — A. 
Yes ; that is what I sajr. I would give him 640 acres of these lands through his pre- 
emption or homestead — that is of these grazing lands — and change the law so that by 
keeping herds it will comply with the law as much as by agriculture. Then you 
might give them an additional 160 acres if they would cultivate the timber on it. 

Q. Eeturning to the strictly agricultural lands, do you see any need of keeping both 
the pre-emption and homestead laws in force ? — A. No, I do not. They could give 
them the right to pay for it and let their rights run back to the date of settlenrent. 



38 PUBLIC LANDS. 

There would be no necessity to keep them both in force ; that will cover the whole 
thing. 

Q. Can yon state in this connection what has been the proportion of pre-emption 
filings proved up ? — A. A little more than 50 per cent, of the filings made have been 
proved up. Down in the southern country there has been a great many filings made 
and allowed to run out. There are a great many cases where a man never paid for 
them. The sheep men who have their herds file upon these lands so as to keep control 
of the land, and then when the time runs out they have another man file on it. I 
think that is a common practice. I know in the southern part of the State but very 
few filings are proved up. Persons living in the southern part desire to preserve their 
ranges for their herds, and file a declaratory statement in order to maintain their con- 
trol over the land. When that filing expires somebody else takes it. There are some 
sections where there must have been fifteen different filings made upon one section. 
It is simply done by the proprietor of sheep herds for the purpose of maintaining 
sufficient land to support his herds upon and keep other people off. They especially 
file upon the water. They have a shanty there for their sheep-herder. A stranger 
comes here and looks upon our books and finds that section filed on, and there is in 
reality a man there, and upon the face of it it is a legal claim. The government gives 
a receipt for the filing, but it will not prevent another man from settling there and 
fighting it out. 

Q. Suppose it is a homestead application instead of a pre-emption filing, what would 
be the situation then? — A. It would have to be canceled. Nobody else could file on 
it. Under the pre-emption law it is a mere notice for him to do something, but under 
the homestead law it is an entry. In one case it is a filing, in the other case it is an 
entry. This filing can be done under the homestead application as well as the pre- 
emption, but under the homestead application it costs too much. It costs $16 under 
the homestead act ; under the pre-emption act it costs $3, a difference of $13. That 
will hardly stand in the way, but it is very cumbersome. He has to come to the offi- 
cer, and it gives him too much trouble. I don't think the homestead right is much 
resorted to in order to maintain control of their land. 

Q. Aside from the pasturage-land entry under this dummy system, is the dummy 
system resorted to to maintain control of the timber lands? — A. No; I don't think it 
is used to hold the timber lands, although it may have been used to acquire title to 
them. I think that probably mill companies sometimes employ men to file on the land 
and enter it. Of course they commit perjury by doing so. 

Q. Then you have reason to believe, from your experience, that entries under the 
pre-emption laws have often been used for the benefit of parties other than he who 
makes the entry? — A. Yes ; from what I can see I should conclude they have been so 
made. Of course, men say they have entered for other men, but they are never will- 
ing to face the music. 

Q. Is it your observation that these lands thus taken up were afterward held by a 
number of different claimants, or do they immediately pass into other ownership? — 
A. I have never been over these lands, and do not know exactly ; but I think that a 
man who takes the timber land intends to sell it immediately to the best advantage. 
They sometimes use it. They sometimes work the timber up themselves. 

Q. What is the rule as to the unsurveyed lands ? — A. They violate the law in that 
they cut the timber off for sale. The trouble is you cannot get the courts to punish 
a man for cutting the timber. The only man we ever punished was a justice of the 
peace named Gilroy. He advised men to cut the timber, and cut it himself. We had 
him arrested and the court fined him $15. 

Q. Are there many cases like these, where men engaged in lumber and timber enter- 
prises have their employes file upon the land and hold it long enough to cut the timber 
off and then abandon it? — A. I don't know of any such cases. 

Q. Suppose that a record claim under the pre-emption or homestead laws is filed in 
your office and the question of abandonment is afterward raised, what steps are neces- 
sary afterward to have that abandonment established? — A. The department have 
rules about that. A man has to make affidavit that it has been abandoned over six 
months. Then he will have to pay the expense of investigation. 

Q. The expense of the investigation is upon the party who makes the affidavit? — 
A. Yes; the applicant has to pay the cost. We hold the investigation, and if we 
reach a conclusion that the homestead has been abandoned, we send the testimony up 
to Washington ; and if they are satisfied \vi<h the proof, they cancel the entry and 
send the case back here. If the man who abandons the land make a declaration of 
forfeiture, we have no control in such case; it rests altogether with the department, 
just as in other cases. Until the cancellation is declared made by the department we 
have nothing to do in the matter at all, not until wo arc notified by the jrovernment. 

Q. Under that system do parties who make application and deposits of money get 
the benefit of it ?--A. Often they do, but sometimes they do not. I think there should 
bo an amendment in that respect. 

Q. Have you ever had any occasion to observe what proportion of original applioa- 



PUBLIC LANDS. 39 

tions for abandonment get the benefit of the final order ? — A. There are only one or two 
cases where some one else has stepped in and taken the land away from him, although 
he had to pay all the expenses. 

Q. "What is there to hinder an original holder from filing on that land again ? — A. 
He cannot, because he has exhausted his privilege. That is the rule of the depart- 
ment. 

Q. How long does it take before this notice of cancellation comes back from the 
department ? — A. Generally about one month. 

Q. How long does it take to get notice from a contest ? — A. It takes on an average 
about one year. 

Q. The expense of that contest to prove the land abandoned rests with the person 
who desires to file on it. What does it cost? — A. The costs generally would not 
amount to more than $6 or $7, probably not more than $5 where there is no contest. 

Q. Do you think it would be proper to permit the land officers all over the country 
to make cancellations ?— -A. It seems to me that would be giving them too much 
power. The better way would be not to allow entry at all, but let them file on it 
without regard to the fact that it had been homesteaded. 

Q. Suppose a man walks into this office, files with you a written abandonment of 
his claim, has the register or receiver the power to declare it abandoned? — A. Yes, 
sir; of course. 

Q. Suppose he does not do that, but suppose a second claimant comes in and declares 
upon the affidavits of two persons that it had been abandoned, what objection would 
there be to permitting you. to set that title aside ?— A. Well, I suppose it would ex- 
pedite business. 

Q. The General Land Office keeps a duplicate of all township plats, and all entries 
that are made upon the original plat are also made upon the duplicate township plats 
in Washington. If you were allowed to make cancellations it could be recorded there, 
could it not? — A. Perhaps it would be the better way to do that. 

Q. When the notice of that cancellation is received by you the land then becomes 
subject to application, by whom ?— A. By the very first comer. But if there is a pre- 
emptor living on the land his rights will attach before any other person comes in. If 
there was a man living on the land his rights would attach the very moment that land 
is canceled. There have been cases of that kind decided, where there was an entry 
canceled, and the real man living on the land at the time has the first chance, in pref- 
erence to the man who wishes to file with his scrip. 

Q. All that you would have to do when that notice of cancellation came, would be 
to receive the first legal applicant that came. If anybody subsequently appeared, that 
would involve a contest, would it not? — A. Yes, sir. 

Q. The relative rights of these two parties would be a matter for subsequent contest. 
You would be obliged to 'receive the first application, which might not be that of the 
man who had been making this particular effort for the cancellation of this claim? — 
A. Yes, sir. I think a man who makes an application for cancellation ought to be 
protected. 

Q. How would you suggest a remedy for that ? — A. I would amend the law so that 
the man who had settled on the land should have a right from the date of the settle- 
ment. The greatest trouble at present is the decision of the Supreme Court, which is, 
that occupancy and inclosure is sufficient to remove the land from the jurisdiction of 
the United States Land Office. There should be a change in the law that the mere in- 
closure or occupancy of United States land, without any claim under the United States 
law, should not be held to give a title to the land as against a United States officer. 
It would be better for them to hold it in that way ; then they would not have to pay 
for it and pay taxes for it. The decision of the court (made by Judge Field) is that 
the possessory right holds. 

Q. How long after the filing of the township plat does the settler have to place his 
claim upon record ? — A. Three months. 

Q. Suppose he does not do it ? — A. Then it is subject, under the law, to other claim- 
ants. 

Q. What form of notice do you have ? — A. There is no form now. There was a pro- 
vision under which we used to advertise. We have a blank now, and as soon as there 
is another applicant we mail that blank to him (the first applicant). 

Q. There is no legal form of notice as to filing upon that land by some one else. If, 
then, the settler resides a hundred miles from this office, would it not be possible for 
speculators to cover over the whole of that land before he could get in to file upon 
it ? Don't settlers often neglect to file within ninety days from lack of knowledge ? — 
A. Yes, sir; there are some who do not file for a year. I do not know of but few 
cases where they really lose anything, because if any other settlers came in squatter 
location could not keep them off. 

Q. The law provides that these lands shall be open to entry and settlement. That 
notice which is sent is sent by the courtesy of the officer, and not by law. It is only 
on the old surveyed land that it is likely to occur. On other lands a man does not 



40 PUBLIC LANDS. 

file in time. It simply illustrates that parties who are on the ground can keep 
parties off this land. The person on the ground has great advantage over those at 
a distance? — A. Yes, except that the other has three months to file on it. 

Q. And should there not be some modification of the law prescribing the framing of 
notice ? — A. I think there should be some provision by which (as it was some time 
ago) the surveyor- general should publish a notice that on such a day he should put 
in such and such a range. But the publication notice would not do it all. 

Q. Would it not do to have the register and receiver, when application was filed, 
to publish a notice in the paper nearest to the township letting the tame of the 
pre-emptor run from the date of that publication ? — A. I think onr way is about as 
well as another. We send to the nearest post-office and have the notice stuck up 
there, and unless the postmaster has some interest to prevent it from being stuck 
up that would be as good a way as any. 

Q. Would not the whole thing be simplified in the form I suggest by authorizing 
the register and receiver to publish it in the newspaper nearest to the land ?— A, 
Yes, but it would not reach in all cases. In some cases there are no newspapers pub- 
lished. In the district of San Luis Obispo, which reaches away back to the mount- 
ains, there is no paper published. 

Q. What proportion of timber in this district remain unsold? — A. I could not say. 
It is chiefly redwood, and there is some oak. It is only used for fires, but the bark 
is used for tanning. That is the great trouble ; they cut the timber off for the sake 
of the bark for tanning purposes. The land in that vicinity is mostly in private 
ownership, so that there is not so much depredation. 

Q. In your judgment, does the present timber law work beneficially or not? — A. 
It does not. It does not seem to have done much one way or another. I do not 
think there has been more than three or four applications in this district, though 
there is so much timber cut. Where it is accessible from the coast the timber has 
been pretty well taken out ; back from the coast, where it requires considerable out- 
lay of capital, there is a great deal left. There is pine and spruce timber. Where 
they cut off the redwood the spruce and pine sprung up. There has been a good 
deal of timber taken off the government lands on that coast. You cannot tell much 
about it. Nobody ever complains unless they have an ax to grind. You cannot 
get a man for $3 a day to hunt up timber depredations. 

Q. Do you not think the timber laws of the United States would be better executed 
under the jurisdiction of the land offices than by any body of agents here ? — A. The 
land officers themselves cannot leave the office. The care and charge of the timber 
land would be better subserved by the district land offices than by anybody else. 

Q. Under what forms do they get title to the timber ? — A. They used to get it by 
State selections ; most of the large companies got it thus, but this is stopped now. 
That is the way it used to be. There is but little buying of the timber land at present. 
So far as they have taken the timber it has been by State selections and additional 
homestead ; so that, while there is a timber law, the timber is disposed of under other 
laws and the timber law is not operative. Persons up in the mountains cut and sell 
the timber. 

Q. How do the provisions of the present law as to taking it on mineral lands for 
domestic, mining, and agricultural purposes operate ? — A. I guess it is a free license to 
take all the timber there is there. 

Q. Would you have the subterranean rights reserved from the surface rights ? Would 
you sell a man the timber, reserving the land to the government ? — A. I would give a 
man the timber from his land. I would make no distinction. I would subject the 
mineral lands to the same laws that I did the agricultural lands in the same tracts. 

Q. Would you sell the fee to the timber land and make no provision for the timber 
for the future ? — A. No ; I would compel them to keep a certain portion of their land 
in growing timber. I would only allow them to cut certain sized trees. 

Q. Suppose you sold the standing timber in alternate blocks, and reserved in each 
alternate block the fee of the land to the government?— A. You misunderstand me. 
I mean that I would let them buy it all, but they should be regulated and compelled 
to keep certain portions of it in growing timber. 

Q. If you sell a man a tract of 040 acres Of land and undertake to put a condition to 
the title, would that amount to anything as a question of law ? — A. That might be ; I 
do not know how the courts would hold it. 

Q. Is not the general policy against forfeiture of title? — A. Yes, sir, I believe it is; 
but I believe that Congress could make a law by which they would forfeit the title if 
they did not comply with the law. 

Q. Do you think that the natural morality of this section is such that they would 
prefer to st eal rather than to use their own timber ? — A. Human nature is about the same 
everywhere. 

Q. Is human nature such that when a man possesses a thing he wants to go and 
steal his neighbor's? — A. They don't look upon it as thieving. 

Q. Now, they practically cannot get it, and they must have it. Is that the case? — 



PUBLIC LANDS. 41 

A. Yes, sir. That is just the reason why they take it. Many men who take timber 
now go and cut it without any intention of making the land from which they cut it 
their homes ; but there is an inducement that leads them to enter the land and cut 
the timber. The man who cuts the tree does not take into consideration the interest 
of the community. 

Q. What is the age of this timber land? — A. I do not know that anybody has ever 
counted the rings on the trees. They average eighteen hundred years. Eedwood 
springs up very quickly. 

Q. Suppose we have a law paesed by which the timber land can be sold in quantities 
to suit purchasers for building purposes, &c. Frequently the timber lands as a gen- 
eral thing are mineral lands. Now. what will be the effect on discovery and prospect- 
ing for mineral if title to the land passes from the government to individuals as tim- 
ber land ? For instance, suppose I could buy 640 acres of timber land as timber land ; 
but that land is also mineral ; what effect would that have upon the discovery of min- 
eral? — A. If it was in the mineral region I would confine the entry to 160' acres. 

Q. Would you sell the surface rights and reserve the subterranean rights? — A. If it 
was mineral land I should sell the timber (because if you do not the government gets 
nothing for it) and reserve the subterranean rights. 

Q. Suppose the land is mineral and timber land both. — A. If you reserve it at all, I 
would sell the timber and reserve the mineral land. 

Q. How would it do to sell the title to the surface of the land for agricultural and. 
timber purposes and reserve the subterranean rights? — A. We sell land now and the 
title goes to the people ; but if there is mineral discovered, the government can claim 
the title to it. 

From what I can learn about the redwood, it sends up twelve to twenty sprouts. 
If they would take pains to cut those sprouts out and leave from one to three, the 
timber would grow very rapidly. 

Q. Don't you think a man should have the right to make as many declaratory state- 
ments as he pleases ? — A. No ; because then a man would have an opportunity to file 
on the whole country. A man fails to make his improvements; he cannot hold the 
property ; another man comes along and buys him out. Then, under your theory, he 
would jump another claim and make other slight improvements, and sell it. 

Q. Why not allow a man to do that ? — A. The law says that no man shall file under 
this section more than once. If he had used up his homestead pre-emption right prior 
to the act of 1873, he would have the privilege again ; because the statute says, since 
the passage of that act. 

Q. Suppose a man does not prove his title and moves off from and sells the land to 
some other party, and goes off somewhere else and again files on a piece of land, why 
should he not be permitted to have a second claim ? — A. Why should he have the 
privilege of tying up land two or three times ? 

Q. Does it do the government any harm ? — A. No ; but it is a mere speculation. 

Q. Still, would it not be a speculation beneficial to the government, to the country; 
does it not make a home for some other person ? — A. Well, yes, if he has improved the 
land at all ; but the other man has to pay him for his improvements. 

Q. Would not the actual fact be that the man coming there has the benefit of the 
land ? — A. Yes ; the old law in 1853 provided that anybody who had had the benefit of 
the pre-emption in any other State should not be prevented from filing on lands in 
this State. 



Testimony of S. B. Chandler. Yuba City, Cal. 

Marysville, October 28, 1879. 
S. E. Chandler, of Yuba City, made the following statement : 
I came to this place in October, 1849, and have been here ever since most of the 
time. We did not suffer in Sutter County much until 1865, and in 1867 we made an 
effort to build a levee. There was a committee appointed to make services and esti- 
mates, and I was appointed a sub- committee of one to attend to this matter especially, 
and I made estimates and superintended the building of the first levee. It was from 
Yuba City north to the opposite side of Feather Eiver, to keep off the slough. About 
Christmas the water came, and what we supposed to be an enormous pile of dirt 
the water ran over and washed away. We then got a law passed by which we could 
form a district known as the levee district No. 1. This district contained about sixty 
acres of land. We proceeded to levee. Our law would permit only 2 per cent, tax to 
be levied on all of the property in the district. We did not come quite up to that. 
We worked at first on the 2 per cent, tax, but that was insufficient for the purpose. 
We afterward got the law changed, allowing the commission just what taxes they 
needed. Last year we levied a tax of 3 per cent, for leveeing purposes, and expended 



42 PUBLIC LANDS. 

all. This season we have levied a tax of 4 per cent, and are again building our levees, 
but it is very likely they will break again from the fact that the water just above the 
mouth of the Yuba Eiver at low tide is at least twelve feet higher than it was when 
I first came here in 1850. A keel of a boat would be twelve feet higher now than it 
would have been in 1850. In consequence of this the water stands so high that, were 
it not for our levees, the water to-day would be running waste over some of the most 
valuable land. 

Q. What amount of land is exposed in this manner? — A. About six thousand acres 
in levee district No. 1, every acre of which would be destroyed if the water came over 
the levees, and there is two or three times as much, -which is equally valuable, liable 
to be destroyed in the same manner just in that neighborhood. Taking it all, there 
would be 150,000 acres which would be destroyed to-day were it not for our levees. 
The tax is from 3 to 4 per cent, on every article of property in the district. 

Q. What is the condition of the land between the Yuba and the flooded lands to the 
east, spreading from the Yuba to the Bear River? — A. I do not know the number of 
acres, but it is fifteen or sixteen millions, and were it not for the levees they would be 
destroyed. Much of it is already destroyed. 

Q. How much land would be destroyed if the levees break ? — A. An area, say, of ten or 
fifteen million acres. It is not destroyed yet, but it has only been saved by the expendi- 
ture of large sums of money. It has probably cost as much money as the land would 
sell for to-day to save it. 

Q. There is a large body of swamp land west of Feather River. How far back is it 
from the river before you reach that swamp land ? — A. Well, from six to eight miles. 
The land descends gradually toward Feather River west until it reaches what is termed 
the tule or swamp land. 

Q. What is the area of that tule land ? — A. That is perhaps 100,000 acres. I do 
not know exactly. There is a large amount of it in the levee district No. 5 — 95,000 
acres of it, and there is some other besides that, which would make it about 100,000 
acres in all. This tule land and the lands bordering on them is only for haying. 
Much of ifc is valuable for grazing, and then again much of it is not valuable for any- 
thing. 

Q. Is it on the next river below the Bear? — A. American River. 

Q. Are you acquainted with the condition of affairs on the American River? — A. 
When you have the history of the Bear River you have the history of the American 
River. 

Q. Is the area destroyed as large on the American as on the Bear River ? — A. The 
property, there was not so much flooded as on the other rivers. 

Q. Has there been as much mining? — A. There has been a large amount of mining, 
and the land is badly injured and would all have been destroyed but for the levees. 

Q. What is the next river south? — A. There are three or four little rivers. I am not 
well acquainted with that region. I have been from the country and I am not well 
acquainted with it. The history of one of these rivers is the history of all of the 
rivers where there has been hydraulic raining. There lias not been so much hydraulic 
mining on those rivers as on this, in consequence of the filling up of the Yuba and the 
damming of Feather River. There are some very valuable farms on the Yuba side of 
Feather River that were the oldest and most valuable orchards (with the exception of 
the Briggs orchard) that we had, and they are all gone. 

We have used, for the purpose of saving our lands, large sums of money and forth© 
mining hundreds of thousands of dollars. If it continues three or fonr years longer 
it is utterly impossible, even with an assessment of a hundred per cent., to save them. 
That is my conviction, having studied the matter as thoroughly as any other man. I 
wrote the first law in which we attempted to levy a tax and the revised law. I have 
paid especial attention to it for the last twelve years, almost to the exclusion of other 
business. 



Testimony of Galen Clark, Yosemite Valley, Mariposa County, California. 

Yosemite Valley, Cal., December 7, 1879. 

1. In reply to a few of the questions submitted by the Public Land Commission, I 
will state that my name is Galen Clark. I reside now in Yosemite Valley, Mariposa 
County, California. 

I am one of the commissioners appointed to manage the Yosemite Valley and Mari- 
posa Big Tree grants, and am the guardian appointed by the board of commissioners 
to look after the local interests of these public grants. 

2. I have lived in California 26 years, and in Mariposa County 25 years. 

3. I settled on public land in 
Diablo meridian, in March, 1857. 



PUBLIC LANDS. 43 

In 1871 1, with three others in the township, deposited money with the United States 
surveyor-general in San Francisco to pay for sectionizing said township. 

In January, 1875, the surveyor appointed to survey this township had not yet filed his 
plat of the survey in the land office at Stockton, and the land not yet being subject 
to pre-emption, I sold my claim and interest in my improvements to other parties, hav- 
ing put $20,000 worth of improvements upon it. 

I bave never sought to acquire title to any other public land since, and still hold my 
certificate of deposit, and also one issued to my son at the same time, who died before 
the completion of the survey. 

6. Yes. As by the present law these certificates are not transferable, the law 
should be so amended that if a person dies, or other circumstances take place so that 
he cannot make use of his certificate of deposit in entering land, either he or his heirs 
may get his money back again. There are a great many such certificates now lying 
useless in California, while the Land Office Department has long since had the benefit 
of the money. 

7. The physical character of the public lands in this county is hilly and mountain- 
ous, and nearly all either pastoral or timber land, very little being fit for cultivation, 
or mineral. 

AGRICULTURE. 

13. It is practicable to establish homesteads on the pasturage lands for small stock- 
raisers, more especially for raising Angora goats, as this land is mostly covered with 
brush and scattering, scrubby timber up to 2,500 feet above tide-water. Each settler 
should be allowed not less than one section, and as much as four if he can pay for it. 
The price should not be more than one dollar per acre. 

14. It is advisable that these lands should be put in market as soon as convenient. 
Perhaps the quantity might be judiciously limited to about six sections taken in one 
body. 

23. The growth of grass has diminished where sheep have been pastured in the foot- 
hills and mountains. 

24. Cattle will not graze on the same land with sheep or goats, if they can get off 
of it. 

28. Most of the corners of the lands surveyed are well defined and marked. 

TIMBER. 

1. All the eastern mountainous portion of the country is timber land. From an ele- 
vation of about 2,500 feet above tide-water up to about 6,000 feet the forests are com- 
posed of Pinus ponderosa, P. lambertiana, Picea grandis, and Libocedrus decurrens, 
all very fine, with black oak and live-oak in some localities. Above 6,000 feet the 
wees are mostly Pinus Jeffreys, P. contorta, P. monticola, Pinus flexilis, and Picea 
amabilis. 

2. No timber is planted in this country. 

3. All the timber land in the Sierra Nevada Mountains should be sold up to an ele- 
vation of from 5,000 to 6,000 feet above tide -water ; in regular lots up to one section 
or two, to one purchaser. The price should be not less than two dollars per acre. All 
above about 6,000 feet elevation should never be sold to private parties or subdivided 
into sections. It had better be given to the State of California upon the express con- 
ditions that it shall be forever inalienable, and the strictest laws passed for its protec- 
tion and preservation ; none of it ever to be cut except in certain localities by special 
permission, to be used in mining interests of the same locality. 

The sheriffs of each county, or some other suitable person, should be made a deputy 
marshal to look after this higher unsold portion of the timber lands, with a compensa- 
tion for every arrest and conviction for trespass, either by cutting timber or setting 
fires, such as will make it a matter of self-interest to be vigilant in his duty. Perhaps 
some localities with fine meadows and grazing lands might be leased to stockmen to 
graze horses or cattle, each county in which the land is located to have the larger por- 
tion of the lease-money for the benefit of its public schools ; but neither sheep nor 
goats should ever be allowed upon any condition to be ranged on this reserved public 
mountain domain. Every r>ossible safeguard should be made use of to protect and 
preserve the forests of the higher Sierra Nevada Mountains. If these mountain forests 
ever in any way or from any cause become in a great measure destroyed it will cause 
a large portion of the richest part of California to become uninhabitable and compar- 
atively valueless, rendering it annually subject to great floods and severe drouth, and 
ruining all ihe mountain streams as a "source of water supply for irrigation. 

5. When pine forests are felled in California there is a second growth of the same 
original kind starts up and grows very rapidly when fires are kept out of it. 

6. Fires originate in the mountain forests in various ways ; by hunting parties and 
camping parties, of either whites or Indians, from carelessness in leaving their camp- 
fires. But many originate with stockmen, especially sheep herders, who set them to 



44 PUBLIC LANDS. 

clear up the country to enlarge their grazing grounds. Fires at present do not spread 
to so great an extent as formerly, before any stock were driven to the mountains, but 
are more numerous, and destroy great quantities of trees, both great and small. Large 
quantities of stock herded in the mountain forests tramp up the dirt and make trails, 
which prevents each fire from spreading to very great extent ; but being more numer- 
ous the damage is about the same. The only way to prevent fires that I know of is to 
make the penalty so severe for setting them, and the reward of the deputy marshal for 
arrest and conviction of offenders so liberal, as to make him ever vigilant. This ques- 
tion of the prevention of fires in mountain forests is a very difficult one to solve. If 
fires are kept out of the forests for a considerable term of years there is such an abun- 
dance of combustible matter, such as pine cones, leaves, dead limbs, and fallen trees, 
accumulated that if a fire does get started by any accident it is very difficult to stop 
its spread, and it is liable to destroy large sections of the forest, the heat being so in- 
tense as to kill nearly all the trees in its course. I have personally known several fires 
to originate by lightning. 

7. The only way to effectually stop the depredations on the public timber is to sell 
all of such portions as I have recommended below about 6,000 feet elevation, and let 
private interests protect its own domain by its own vigilance and the laws of the 
State. 

The foregoing remarks are respectfully submitted. 

GALEN CLARK, 
Yosemite Valley, Cal. 



Testimony of J. T. Clark, Livermore, Alameda County, Cal., relative to public lands, irri- 
gation, water rights, pasturage lands, titles, homesteads, Spanish land grants, government 
patents. 

J. T. Clark, of Livermore, Alameda County, Cal., testified at San Francisco, Octo- 
ber 10, as follows : 

I have lived in the State fourteen years, and have had ample opportunities to be- 
come conversant with the public lands of the State. I have been for the last ten 
years connected with litigation growing out of the land system of this State. I know 
but little about timber lauds ; my experience has been altogether with the arable and 
irrigable lands. I do not know that 1 have paid as much attention to the classes of 
lands as to the means of obtaining them. In so far as the arable lands are concerned, 
I differ from most persons. I believe that a great portion of the lands called irrigable 
lands are, in fact, under proper cultivation, arable lands. Indeed, I have observed 
that fine crops of corn and vegetables may be grown upon the adobe lands by culti- 
vation . I thmk that the arabje lands of the State, as well as the irrigable lands, should 
be held for actual settlers instead of for speculative purposes, as has been so often the 
case. 

Q. Take the lands in Southern California ; can they be cultivated without irriga- 
tion ? — A. Possibly the great volume of these lands can't be made arable, but there is 
a large quantity of lands in the State that are regarded as not being susceptible of 
proper cultivation without irrigation which I believe can be cultivated without irri- 
gation. I think the arable lauds cover a greater extent of country than most people 
think they do. There still remains a large amount of irrigable land, and as I stated 
before they should be held exclusively for actual settlers in small quantities. 1 believe 
that has been done iu Tulare, Fresnal, and other places. All the water necessary for 
irrigating purposes will be brought upon the land by the labor of settlers, and I believe 
that the troubles which grow out of the extortionate water rates would thereby be 
avoided. My opinion is that the people who would make homes upon the land and 
add to the taxable property of the State by building school-houses and developing the 
resources of the country, the men who need homes, ought to have them, and they will 
bring the water upon their homesteads and reclaim them. I would not, except in very 
exceptional cases, charter water companies. I think the streams could be taken out 
by the actual settler, and I think if they were forced to do so they would do it. I 
think that in course of time people would settle on the Colorado Desert and take out 
the water of the Colorado River to irrigate it with. There are thousands and thousands 
of men who need homes, and my opinion is that these men will adopt a system of irri- 
gation which will be successful,' and by which that country, like ;i great portion of the 
San Joaquin Valley, will be reclaimed and (hen made exceeding valuable. 

Q. Have you thought of a plan or law by which the water right shall inure to the 
land?— A. It unquestionably should, because the land without the water is worth 
nothing in those districts that are only susceptible of reclamation by irrigation. 

Q. What would be the effect eventually in this country on the agricultural indus- 
tries if water companies are organized and have control of the water .' — A. If water 
companies have control exclusively it strikes me it would bo ruinous, since it places in 
the hands of a corporation the power to sorely oppress the agriculturists. I do not 



PUBLIC LANDS. 45 

think it would be judicious to permit a corporation or association of individuals to 
have control of that without which the lands of the State are valueless. 

Q. You recognize as beiDg a physical basis of classification the body of land I call 
pasturage land ; how would you dispose of that ? — A. That class of land, of course, is 
only useful for persons who own herds, and herds require a great deal of food, and 
food is, to a considerable extent, scarce upon a large portion of this land. Thus it 
would necessarily require more land than is now allowed by law if a person desired to 
live upon that land with his herds. Of course the quantity of laud that should be 
given to a man for grazing purposes would depend upon various circumstances. I 
think that one or two sections would, ordinarily, be sufficient. Sometimes it would 
require very much more, and sometimes less. 

Q. Suppose the water of the small streams was reserved for the use of pasturage 
farms, so that when a man acquired title to a pasturage farm there would be water 
sufficient to irrigate a few acres of land '?— A. That would give him a portion of land 
that might be irrigated for the purpose of raising a small amount of grain, &c, and 
would necessarily diminish the amount essential foi a pasturage farm. 

Q. What are the means of obtaining titles ? — A. It seems to have been the policy of 
the government in the homestead act to provide homes for people who need them, and 
it strikes me that this is one of the best provisions that has ever been attempted by 
the government. It is founded on the idea that men need homes and the govern- 
ment needs people to own homes to make the country prosperous. It strikes me, how- 
ever, that the pre-emption feature might be abolished, since it is surrounded with a 
great deal of fraud. People oftentimes take up a piece of land under the pre-emption 
law under a previous contract to sell the land to somebody else, as soon as the title is 
obtained. It appears to me that the homestead law is right in policy, and that the 
length of time necessary to obtain title should be extended. No titles should be granted 
at all. It is a question in my mind whether the title should ever pass to the individ- 
ual. I think, instead of that, that the right to the occupancy of the land should be 
granted upon condition of continuous cultivation, and the government should have 
the right to give the lands to somebody else in case an occupant sought to abandon it. 
I think the fundamental idea that "homes for the people and people for the homes" 
is the one that should be adopted by the government. The prosperity of the people 
depends upon their having homes. It is a question in my mind whether, having ob- 
tained homes, they should be permitted to alienate them. 

Q. What effect would that have upon the improvement of the country? — A. I can 
understand that that argument might be presented with considerable force. I think 
the policy of furnishing a homestead upon which people have been required to live for 
five years has been so effective and beneficial to the country that I should like to see 
it carried out to its logical sequence, which would seem to indicate that you have the 
same right to require a man to live on the same homestead ten or twenty years that 
you have to require him to live there five years. I can understand that there are ex- 
ceptional cases, and that there might be exceptions to the rule, but in my judgment 
it would work great good to the country. As the system exists now, the moment a 
man gets into embarrassment he hastens to mortgage his homestead, oftentimes at ruin- 
ous rates of interest, and eventually he loses it all ; and he not only loses his property, 
but the State loses a valuable citizen, and the community is to that extent damaged. 
The effect is that the poor men who need homes and who cannot live without them 
get them tied up in such a manner that they lose their homesteads, which pass into 
the hands of men who do not utilize them, but hold them for speculative purposes. 
It strikes me it would be well for the government to exercise a fatherly supervision 
over the welfare of the people. 

Q. Suppose your system was adopted and you permit men to sell their homes, would 
:heir improvements revert to the government ? — A. I am offering this as a suggestion, 
and possibly it might be unjust not to permit the occupant to sell his improvement. 

Q. The improvements include a great deal ; the horses, barns, cattle, sheep, orchards, 
even the cultivation of the soil, are improvements. — A. Of course it is an idea that 
can't be successfully contradicted that no government can be successful and prosper- 
ous whose people are not prosperous, and the prosperity of every branch of industry 
depends directly upon the success of private interests. When they are prosperous, 
all branches are prosperous; and when they are bankrupt, the country becomes bank- 
rupt also ; and it is with this in view that I believe that the homes of people should 
be secured to them, and that they should be kept in possession of those homes inde- 
pendent of exterior influences ; then they can't become bankrupt. They may lose the 
produce of this year's labor or next, but they have the soil to depend upon for the 
year to come, and they can't to any irreparable extent be ruined. The condition of 
affairs which exists all over the United States to-day will show the fact that the 
farmers of the State are, to a very considerable extent, either bankrupt or in process 
of reaching bankruptcy ; and if that be true, a ruin that can't be measured will be the 
consequence ; and if our people can be inaependent, if they have a home which under 
the most adverse circumstances they own and which can't be alienated, the country 
can't be otherwise than prosperous. There has been a law in force, and I believe it is 



46 PUBLIC LANDS. 

in force now, under which the State receives from the Government of the United 
States title to every 16th and 36th section. This, in my judgment, has been of very 
great damage to this State, and should be repealed. There has arisen here the fol- 
lowing custom : for instance. John Smith held a grant under the Mexican Government 
(prior to the acquisition of this territory by the Government of the United States) for 
an indefinite amount of land, say five leagues, within certain definite exterior limita- 
tions, perhaps forty leagues, within whose exterior boundaries would of course fall many 
16th and 36th sections in townships, and persons in this State who wished to acquire 
title to valuable lands anywhere within the State, and particularly in the land district, 
would go to the State surveyor-general's office and show by the lines of the land 
claimed that those Mexican grants covered the 16th and 36th sections, and make appli- 
cation for one-half or for one section of land through dummies, in lieu of those 16th 
and 36th sections claimed under the Spanish grant. 

It has been the custom to have this land approved to the State from the general 
government, and after having been listed thousands upon thousands of acres of such 
lands were turned over to the State which should have been held for pre-emption and 
homesteads, and which fell into the hands of men anxious to obtain large bodies of 
land by the payment of $1.25 per acre for lieu lands. When these Spanish grants came 
to be surveyed, instead of taking in forty leagues of land, they would be cut down to 
five leagues of land, and the 16th and 36th sections, for which land had been improp- 
erly taken off in the good portion of the State, would fall outside the grant, and as a 
rule they too were applied for by these men who were anxious to obtain large tracts 
of land; thus they got both. A law requiring the settlement of the title to these 
Spanish grants would settle the matter. I think all these grants ought to be settled 
within one year, or they should be forever barred. I am opposed to the granting of 
land to a State or to any individual. If they are granted to anybody, they should be 
granted to the citizens of the country, who should be compelled to live upon them. 

Q. Do you know of an instance where lieu lands have been granted and subse- 
quently the original lands for which the lieu was made have fallen into the hands of 
the State ? — A. Yes, sir ; I can give you an instance where the government ruled on one 
section of land in my neighborhood. A section of land was claimed under a Spanish 
grant. It was settled up by four men. After the Spanish grant was cut down to its 
proper limits, they made application in this land office for the land. In the mean time, 
however, they had settled what that land was, and it was restored to the public domain, 
and before it was possible for anything to be done with it it was listed to the State, 
and the parties paid the State for it. In the end, the listing to the State was can- 
celed, and other parties were permitted to make their proof in this land office, and 
they did so, and paid the government for the land, and got a patent from the United 
States Government for the land, and the original men drove them away from their 
homes five times, and, finally, they lost their lands, although they had actually paid 
for it. 

Q. Do you know that, after land grants have been settled by Congress and their 
boundaries defined, the deputy surveyors in surveying the grant for the owner 
changed the boundaries as defined by the approved grant lines, and that persons have 
obtained rights to them in that way? — A. It strikes me there is a very notorious case 
of that kind in Los Angeles County, v, nere there were two grants lying about four 
miles apart. I know of a case in Alamada County, in which the deputy surveyor sent 
down to survey some laud that was claimed under a Spanish grant surveyed a town- 
ship on account of the Mexican grant, and at the time he was making this survey other 
parties were making applications for the even-numbered sections of land under the 
lieu location. 

There is one thing more I would like to say. I suppose the scope of your investiga- 
tion is intended to reach all classes of public lands, and I presume you have been in 
Tulare County. If so, I have this to say about that : The land graut of the Southern 
Pacific Railroad was through a certain district of country, and certain couuties were 
named through which the road should pass. There were parties at a distance of 125 
miles from where the railroad was being built who had brought water upon their 
lands and irrigated them by means of miles of ditches, and after they did that the 
railroad procured a joint resolution from Cdugress to change their route and run their 
road through the lands of these settlers, aud the road is attempting to drive them off. 
They are not respecting the rights of these settlers at all. 

There is another thing. I recited to you awhile ago the case of four men who re- 
ceived patents from the Government of the United Slates for their homes, though it 
was decided by the government to have been an error to have listed the lands to the 
State, and the parties purchasing from the State took away from the pre-emptors their 
homes, for whieb they held government patents. It seems to me that this error having 
been committed by the officers of the United States, it is the duty of the United States 
Government wherever they issue a patent to defend it. This case was finally curried 
to the Supreme Court of the United States, and the decision of the State court was 
overruled. The decision of the district court was in favor of the pre-emption patent, 
but it was overruled by the Supreme Court of the United .States. 



PUBLIC LANDS. 47 

Testimony of J. W. Clarke, of Livermore, Cal. 

J. W. Clarke, of Livermore, Cal., testified at San Francisco, October 15, 1879, as 
follows : 

I have lived in this State since 1860. My object in coming before the Commission is 
to call its attention to the manner in which settlers on public land are treated. My 
own experience in the State has been that it costs more to pre-empt land than it does 
to buy it outright. My theory is that when the Interior Department declares land 
public land that the settler should be protected in his rights upon that land. Take 
Livermore Valley. In the first place, settlers took up the whole of the eleven leagues 
that was claimed in the Livermore grant, whereas the grant was ooly entitled to two 
leagues, as decided by the government, which declared that all outside of the two 
leagues was public land ; accepting which decision, we filed upon it and have been in 
constant litigation ever since. We were on the State lieu lands. My experience is 
that it costs every man $500 to pre-empt one quarter section of land. Litigation has 
cost me $500 on my quarter section. I would do away with the pre-emption right 
entirely. Make it a homestead, but require a long residence to confirm the title. I 
would do away with the 16th and 36th sections of school land for the reason that they 
have caused more litigation than all other causes combined in the State. Surveyor- 
General Minnis tells me that he found over three thousand applications for lieu land 
that were delinquent. He brought suit in the district courts to set the purchases from 
the State aside, and they were set aside. The land speculators had located lieu scrip 
on large bodies of land. They paid 20 per cent, when they located their tracts, and 
then, from that time, 10 per cent, per annum, and, having failed to make these pay- 
ments, General Minnis held them to be delinquent and brought suit in the district 
courts to set the purchases from the State aside. Mine with many others were set 
aside by the decision of court ; and one year after that suit was brought against me, 
claiming that I held a United States patent in trust for these lieu locations that were 
made in 1863 and had been declared forfeited. These are the evils that we have to 
complain of. I think the United States law should be so amended that whenever the 
Secretary of the Interior declares a piece of land public domain the United Spates 
Government should protect the settlers from litigation, and this is one of my reasons 
for wanting the 16th and 36th section law done away with. Let the government make 
donations instead of that. I would not have any person acquire title to the public 
domain except by homestead, and I would grade them according to the quality of the 
land. 

I object to the theory that some gentlemen have advanced in regard to the home- 
stead pasturage — the theory of allowing persons to accumulate all the land they saw 
fit. I am opposed to the holding of land in large bodies. In Livermore Valley there 
is an instance of that. In 1871 the Secretary of the Interior declared all the land out- 
side of two leagues public lands and ordered the register and receiver to treat them 
as such. Every quarter section outside of the two leagues, instead of the eleven 
leagues that the grant-holders were trying to obtain in the valley, was settled upon 
our schools. We failed up some seven houses with the school establishments, and then 
the railroad came and claimed the odd number of sections and went to litigating the 
settlers one by one and dispossessing them. The consequence was that it took more 
than one-half of the land from those seven schools. Now that railroad land is farmed — 
perhaps one or two sections by one man — and rented. The tenant has no children, 
perhaps, and you can't have schools and villages where the land is held in large tracts. 
I think this hilly and mountain land might be graded, and if you confined a man to 
six hundred and forty acres of land it might do, but to allow him more than that 
would be bad policy. 

As to the surveys, that country was all surveyed in 1867, and I guarantee that there 
are no two surveyors that can take the field-notes of that survey and run the same 
lines by those field-notes. The settlers there have had two or three different county 
surveyors take the field-notes and go to one of the township corners to start, but they 
could not find the next township corner they were running to. I think it was the 
fault of the surveyor, because if the survey had been made upon the ground, the cor- 
ners would have been established, and they would have been found, at least some of 
them, but there is a scope of country from twenty to twenty-five miles square that I 
venture to say you can't find five corner stakes in. This is in the Livermore Valley. 
Where stakes have been put in the ground they were of California oak, and they 
rot out in two or three years. Then another great trouble has been the large land- 
holders, I think, destroy the stakes. I never saw them do it, but it was generally un- 
derstood that they obliterated the corners wherever they possibly could. The fault 
was with the government in not compelling the surveyors to establish the corners 
more permanently. I think the present system of surveying is a good one, and the 
true system. 

Question. Has there been much destruction of timber ? — Answer. I find that there is a 
great deal of timber being destroyed all over the country wherever the timber is accessi- 



48 PUBLIC LANDS. 

ble. Men will go and squat upon a piece of heavily-timbered land. Perhaps they 
will file on it, if they think they are in danger of being molested. Then they have 
two years and a half in which to prove up, and by working on that land for that 
length of time they will cut off an immense amount of timber and sell it. All the 
wood that is hauled in the town of Livermore is hauled off of land that the govern- 
ment has never been paid for. Private individuals, when they get hold of it, pro- 
tect the timber, and it will be safer in private ownership than it will be in any other 
way. I would confine the sale of the timber to 640 acres; I would not exceed that. 
It ought to be graded, making a distinction between timber that is suitable for mill- 
ing purposes and timber that is suitable only for fuel. The timber is being greatly 
devastated, but not so much by fire as by cutting. There has been some fires this 
year that run over thirty or forty thousand acres perhaps. It is to the interest of 
the farmers to protect the timber. That interest would be intensified if they owned 
the timber land. 

Q. Have you had any experience in irrigation ? — A. Irrigation is difficult in some 
years. It would be an immense benefit to that country, but I have had very little 
experience in irrigation. We are without the means of irrigation, though we think 
we are pretty well off if we summer- fallow. That is the next thing to irrigation. 

Q. What is the difficulty in the way of irrigating ? — A. The difficulty is with the 
supply of water. It would be impossible for us to get a supply of water without 
taking it away above where we are, out of King's River, in order to get it over the 
Livermore Mountains. Artesian wells would be our only means of irrigation. There 
was one artesian well bored to a depth of four hundred feet, and the water rose to 
within two feet of the surface. 



Testimony of Sherman Day, of Berkely, Cal. 

Sherman Day, Berkely, Cal., testified at San Francisco, October 14, 1879, as follows: 

I was formerly United States surveyor-general of California. I have lived here for 
thirty years. There is a subject I would like to make a statement to you about now, 
because it is not quite certain that I will have another chance while the commission 
is here, and which relates to surveys. When I was in office here, I noticed that the 
State of California had very great difficulties in getting appropriations for the survey of 
public lands from Congress. A great many people have been disposed to blame either 
Congress or the Commissioner of the General Land Office, or the surveyor-general, 
because those appropriations did not come and because we did not get* all that we 
asked for. We cannot expect all we asked for, because we are brought into competi- 
tion with the necessities of many other States, and get our full share of public appro- 
priations. The Army and Navy have to divide a good deal of their appropriations on 
this coast, and we are not likely to get all that the Commissioner of the General Land 
Office and the Secretary of the Interior recommend, or even the amount we ask for ; 
though I do not blame Congress, because they are trying to economize. Now, under 
that state of things, it has occurred to me that if Congress would limit the use of the 
appropriation for public surveys in California to the townshiping lines, that that 
would bring the United States land survey and its stakes and established corners 
within the reach of somethiug like four times the number of people that it does now, 
by spending a portion of its appropriation in townshiping and a portion of it in 
sectioniziug. There are twenty-four miles to be surveyed around a township, and 
there are sixty miles to be surveyed within the limits of a township after the town- 
ship lines are run, for the purpose of subdividing and sectionizing it. The difference 
between the price of surveying the township lines and section lines would enable us 
to survey other townships. For two or three hundred dollars we can bring the stakes 
of the United States survey within three miles of auy legal subdivision of a township. 
We can survey (by saving the money paid for sectioniziug) something like four times 
the number of townships that we can when we use it for sectionizing. Then, if they 
want more appropriations for sectionizing, the best place to get that appropriation is 
right there in the township, or in the neighborhood of tho township, where there are 
persons who are interested in having that subdivision made. By a proper system of 
special deposits, they can have their lands surveyed in the locality that way, or iu any 
other manner the government shall devise. This is the principal idea I had in regard 
to spending the money that is received for surveys annually; and instead of waiting 
ten or fifteen years to get through the survey of such public lands as must necessarily 
be surveyed in California, we can do it in one-half tho time. 

Q. How much land has been surveyed which has not yet passed out of tho hands of 
the government ? — A. I do not know. There was a great deal of desert land surveyed 
on the Colorado Desert, and some other places where it was very easy to run the lines. 
In order that they might get their pay under the contract for surveying, they would 



PUBLIC LANDS. 49 

bring in the returns and show on the map a large amount of land surveyed. Whether 
the stakes are there or not I do not know. Since that (that occurred during the first 
years of the country) I suppose there must have been in different parts of the State 
a good deal of land "surveyed that has not been purchased or pre-empted or home- 
steaded, for the reason that there must always be in the public lands a portion that is 
useless. They cannot all be rich and desirable. The surveys would naturally go over 
a considerable portion of land which would be common, in proportion to other parts 
that would be surveyed in a township. To pick these out and state exactly where 
they are and to classify them I am unable, because I have not been during the last ten 
years in the land business. I have been doing some surveying and examining mines, 
which has taken me to different parts of the State. 

There is another class of land which has been spoken of here which remains in the pos- 
session of the United States for the reason that some party has pre-empted all the water 
which pertains to this land. Take, for instance, a township in Mendocina County. 
There may be a great deal of desirable timber and sheep and mountain land, &c, and 
the desirable timber land will be taken up and the other lands adjoining these timber 
lands (probably good homestead lands) are not taken up, and when you come into 
what is called the sheep-grazing land there you will find the same reason why the 
government has not sold all that land, because settlers have gone there and cannot 
get the water. The streams are taken up by somebody, and they were driven off on 
that account, so that poor men cannot take these homes which are desirable. The 
land is counted in these districts as surveyed lands, and, while they have in reality 
been, no one can settle on them. I think since these old-fashioned desert-land sur- 
veys, which were thought desirable land to be surveyed by the surveyor, and which 
were surveyed many years ago — I think the disposition of the surveyor-general has 
been to find out where the lands were wanted by the people in the neighborhood to be 
surveyed, and I think that principle has been followed in the administration of the 
land office. There has been some difficulty with the surveying. Sometimes the sur- 
veyor lias sought out a piece of smooth land, where he could make his money under 
his contract. Those are the actual desert lands, the dry lands. I think there are no 
places where you can go to survey a new tract without hitting some group of land 
searchers or settlers outside the boundary line of settlement. 

There is one other point I want to speak of. A proposition has been made to apply 
the geodetic system, or the Coast Survey triangulation system, as it is generally 
called, to the survey of the public lands. I do not see any necessity for superseding 
one with the other, but I think one may help the other. In the surveying instructions 
we worked by years ago we were not allowed to triangulate or shorten the mode of 
making the survey, except in cases of impassable rivers or inaccessible mountains, 
but generally we were required to keep the same line, staking as we went. My idea in 
introducing the geodetic survey is that it should not be introduced for the excessive 
accuracy which prevails with the coast surveying, but to introduce as an assistant in 
the rectangular survey. My idea about it is in surveying that if a surveyor has a cer- 
tain township to survey, and he starts from some established corner, he will very often 
find smooth hills, from which he can run lines a long distance, and he will find natu- 
ral points to which he can triangulate. He may find ledges upon the land upon 
which he can also run triangulation lines to set the evidence of the survey, not at- 
tempting to obtain extreme accuracy, but to use the geodetic plan in marking out his 
prominent points, so that from them he can go with short chaining and establish 
his township corners. And he can go over there and secure the second corner, which 
his plat must have shown him is there, or near there, and so on with each corner of 
the township. In many cases, where he is to go down steep canons and go up and 
down hills, he will find that he has got his township in much better form for closure 
and much better adapted to closing than if he had not had the privilege of intro- 
ducing the geodetic system where it was needed or expedient. To do that success- 
fully you must employ men who are capable of understanding that system, and men 
at the same time who are not going to waste their time in excessive minute accuracy. 
I think if these suggestions which I have made concerning the surveys were acted upon 
it would facilitate the surveys of the public lands, and leave the main body of the ap- 
propriation to be made by the people themselves in the localities where surveying has 
to be done. I have had in the course of my life as surveyor-general, mining surveyor, 
andminingengineer to survey by the chain and compass, and thus while traveling around 
I have had an opportunity to see and become acquainted with, almost all the classes 
of land that you have in view in your series of printed questions. I have been all over 
the tracts of desert land or what may be called desert lands, that is desert without ir- 
rigation. I have been in many of what are called sage-brush deserts, down in the 
mountainous portions of the State. I have not settled on this land but I have seen 
crops cultivated where they got water, and I may profess to be an expert in those mat- 
ters. On different occasions I have had some experience with people who are occupy- 
ing unsurveyed lands, and want to keep them in large quantities, and who had in some 
way put brush fences around the land and thus fenced. off every accessible point to per- 

4 L C 



50 PUBLIC LANDS. 

haps several thousand acres. I remember on one occasion I sent out a deputy sur- 
veyor in the Mendocina County. I sent him somewhere along in October to survey 
three or four townships. He had not been out very long before a number of stock 
men who had been herding their cattle there, and who had been there for a long time 
and had fenced in tracts here and tracts there, in a rude way for the purpose of hold- 
ing the land as ranchers, came in and complained that these surveyors were in their 
settling stakes, and subdividing the townships, and that their camp-fires set fire to their 
grass and they were being injured, and they wanted me to stop the survey. I told 
them that we were not authorized to stop the public surveys ; that they were needed 
and that many people wanted to take up the lands; that I could not see any good 
reason for stopping them, &c. They complained that until the rains came they had 
no places to go to, so I suspended the surveys until the November rains came, and let 
them then go seek other places. That showed me that there was a good many people 
on this land who desired to take up large tracts of it, but did not care to pay a very 
high price for it ; but at the same time there is danger that classifying these lands as 
pasturage lands and allowing them to be sold at low prices in quantities of 2,500 acres, 
there will be some one who in one way or another will get a good deal of land, and 
that capitalists may secure a good deal of land and a good deal of water that may be 
used for cultivation, by taking up land that may be classified as pasturage lands and 
sold for twenty- five cents per acre. And that is where the government will have to 
exercise some caution ; not that the system should be objected to, but that they should 
use great care, so that the lands of one class will not, to a considerable extent, get in- 
cluded in another class in that classification. 

Q. What disposition would you make of the timber land? — A. I suppose the timber 
land must be sold in such tracts as will enable capitalists to put up saw-mills and be 
properly supplied with timber, or there would be danger that the small owners of 
timber would, combine against the saw-mill men, and destroy their whole capital. 
The suggestion has been made that the timber-land, should be sold in 160-acre tracts. 
I have often thought, in traveling over the timber and watching the manner in which 
it was secured by large mill-owners, why cannot poor men have some of this land ; 
why cannot they avail themselves of their pre-emption privilege ; avail themselves of 
160* acres of this land as well as the large landholders, the timber-men ; why should 
they have the whole privilege, and the poor man not have any ? At the same time I 
can see the difficulty of regulating these two classes, the mill-owner and the settler 
on the small tracts of land. The same difficulty occurred here some time ago, and ex- 
ists at the present time, between the ditch owners and the mining companies. The 
ditch owners were one class of men not owning the land, and the mining owners were 
another class of men wanting the ditch water. The ditch owners began by asking 
something like forty cents per inch, and afterward they gradually came down to twelve 
and a half cents ; the miners always growling and declaring the price was too high, 
and refusing to use the water. Then there was a combination of the settlers against 
the ditch owners, and the case of the strongest came in. Now, that is the same thing 
that would occur in the timber land unless there was some provision to prevent col- 
lision and combinations of some sort. Just what the law should be to meet these 
cases I do not know. 

Q. How would you arrange it so as not to have one right interfere with another; for 
instance, so as not to have them acquiring large tracts of pasturage lands destroying the 
right to prospect for minerals, &c. ? — A. There is to be considered in this connection a 
proper guardianship of these lands and their occupation for the uses to which they 
can be properly adapted ; thus the timber lands for milling, the pasturage lands for 
pasturing, and the mining lands for mining purposes. There is to be considered the 
difference between our general government and the government of Mexico, and the 
government of any particular State, as regards the regulation of the mineral land 
particularly. 

Mexico has the law of the Spanish Government, and is expected to be always, by her 
mineral system and by the long existence of the traditions of her people, the proper 
guardian over the private interests of her citizens and to distinguish between them ; 
adjust the laws whenever they come in collision, endeavoring always to harmonize 
the many different interests of her people, &c. 

Now, under the Mexican Government, there never could have arisen any controversy 
over the title to the Alamadau mine, and if a controversy should have arisen it never 
w T ould have arisen over getting possession of the mine through pasturage title. 

There are places here where the pasturage lands and the mining lands lie together, 
and large tracts of mining land might W taken up as pasturage land. There is a 
great deal in that idea. There are some things in the Mexican law which might be 
very well adopted by our government, while at the same time the spirit of our gov- 
ernment has been to keep aloof from meddling with private affairs as much as possi- 
ble. 

Q. How would you dispose of the pasturage lands? — A. I would classsify them in 
each locality and sell them in tracts of a certain number of acres, say perhaps a quar- 



PUBLIC LANDS. 51 

ter section, or 1,200 acres, or some multiple of the legal subdivision out and out, 
and have done with it ; but if you want to combine that with another system, and 
where the mineral lands are allow people to prospect all over them for minerals, you 
will have to prepare a system which I do not think it is politic for the government to 
do ; that is, a system of "holding supervision or guardianship over such of these lands 
as are not yet appropriated. I think the policy of the government is like that of the 
merchant who has been out here for thirty years and who wants to close out his busi- 
ness, sell off his goods and be rid of them. 

Q. There are in the United States very large areas of pasturage lands ; say, four- 
tenths of the whole area of the United States are valuable only for pasturage purposes. 
Would you allow a man to take up 40 or 80 acres along the water-courses ? — A. No, sir ; 
I would not. I would locate the water-courses and springs in such a mannerthat every 
one might have a part to use, and in that way a spring could be utilized for perhaps 
ten miles around. I should say it would be better to locate the land so that every man 
might reach the water of that spring. If there was a water front I would adopt a 
system of ranches along that water front, having them extend back in a long strip, so 
that each man could have his measure of the water front. That is the way that either 
the United States or the State government must do to deal fairly with the public ; 
for the moment you allow this monopoly of land, that moment you have given away 
to an individual some four or five or fifty times the water he should have, and thereby 
he utilizes large areas of land that he does not own. There has been a great deal of 
that already done here. The location must be made with discrimination, and then 
some governing power put in there with discretion to keep these people from taking 
more than their share of the water. In regard to the guardian powers, the legislative 
power, and the modification of these land laws, it seems to me that eventually, and 
before a great while, a State egislature maybe found to be the proper place to inau- 
gurate this legislation. 

So far as California is concerned the members of Congress who go from this State 
know very little about the State and its peculiarities. They know very little about 
this constant collision of water rights and the wants of the dry land and the pastur- 
age land and of the mineral land, as compared with the agricultural land. They know 
very little of this dehris question, and they are not fit to legislate on this subject. 
When Congress legislates for this coast it legislates through a small body of members 
who do not know much about it ; while in the State legislature the whole legislature 
isposted on the subject, and therefore it would be better if this matter could be regu- 
lated by the State. 

Q. Have you any suggestions to make in regard to the irrigable lands ? — A. I think 
the irrigable lands must in some way follow the irrigating streams and be attached to 
them in some manner and by some mode of law which shall give a man who has all 
irrigable land along a certain artificial water- course the right to always have his meas- 
ure of the water that flows there. Just in what way that can be done I do not know. 
Then again, in regard to the control of the irrigable land and the control of the water- 
courses, it is advocated sometimes that it should be in some general United States 
system, or the State should 'control all the irrigable lands in the State. There are cer- 
tain points which a general State law may arrange or provide for, just as there are 
certain points which it is the duty of Congress to provide for ; for instance, in regard 
to the commerce and the postal system, or something of that kind; but to make one 
law which will apply to every irrigating district in the State is not an easy thing to 
do. I think the general law and the system that was recommended by General Alex- 
ander and the commission that sat with him in regard to the irrigable lands of the San 
Joaquin embodied the correct idea — that so far as possible, under some law, the control 
of a particular stream of water should be placed in charge of a body of men limited 
to the charge of some particular water-shed along its entire course. Take, for instance, 
the water-shed that comes from the Sierra Nevadas, and that water could be placed 
under one set of commissioners, and they have nothing to do with any other water. 
They must enforce the distribution of this water and see that the land owners got a 
proper share of water, and that the water companies shall receive their proper revenue. 

Q. Are you familiar with these troubles concerning hydraulic mining ? — A. I am not 
very familiar with it, but I have surveyed hydraulic mines and know many of the 
principal owners of the State. I am not sufficiently well acquainted with hydraulic 
•mining to be able to testify in regard to it. 

There has been a statement made here in regard to the location of quicksilver mines 
and the disposition of them, and I would like to confirm some portion of that testi- 
mony. Quicksilver is not a regular deposit, and should be taken out under the square 
location. In the manner in which it is taken out at present it is not a profitable oper- 
ation for the claimant, and he should not be required to testify that it is one vein, &c, 
because quicksilver is not found in veins. It is not found in regular veins or lodes, run- 
ning in between regular walls like a fissure vein, nor is it found in stratified formations 
like coal beds. They are, to some extent lodes, though they are not regular and change 
very capriciously. Sometimes the. deposit follows down on what you might call a reg- 



52 PUBLIC LANDS. 

ular dip, but after following it a little way it will turn around and run almost hori- 
zontally. On that account it should not he subjected to the law which requires a claim 
to be taken up in the direction of the vein. There has been a great deal of delay in 
the matter of the Spanish and Mexican grants. Taking the statement of the peopie in 
general, with their complaints of delay in the case of these claims, you might suppose 
they had some system of settling them in one year, and that if the government would 
only provide men for surveying the land that it would be done at once. Surveying is the 
first cure recommended by these people. So far as the government has made prepara- 
tions for surveying these ranges at government expense it helps very much, especially 
where the owners have refused or declined to have them surveyed themselves. They 
have an interest in not having them surveyed, because they were holding under their 
grants two or three times as much land as they finally got when the claim was settled. 
During the interim, having no segregation from the public land, they had been enabled 
to sell quitclaims to the land within these boundaries that were claimed, although 
they had no title to the land ; and hence it is not to their interest to have the surveys 
made, and they do not want the government to make them. When the government 
forces the survey upon them, that question of grant boundaries comes nearest settle- 
ment. Unless there is some dispute, a claim should go through within a year or two. 
The ranches still unreserved may be classified into as many as three classes. There is 
that class that merely requires the paying of a small sum of money to the land office 
by the owners in order to entitle them to a patent where there is no contest ; only a 
little delay on the part of the owner to pay expenses. I do not know to what extent 
this class has been disposed of. 

There is, next, a set of claims which involve contests of boundaries of disputed own- 
ership, contests arising from overlapping with other claims, &c. These, I suppose, to a 
certain extent can be adjudicated by the surveyor-general under the present laws, and 
closed up in that way. There are still others which involve such important questions 
of litigation and such conflicting questions — that involve not only questions of bound- 
ary and surveys, but likewise legal questions that reach back to the jurisdiction of Con- 
gress ; the jurisdiction of the Land Office — questions of that kind, which will eventu- 
ally have to come before the ordinary courts of justice, and ought to be sent there from 
the surveyor-general's office, to be settled under the rules which have been adopted by 
the court to adjudicate such cases. They ought to be in the ordinary courts of justice, 
where testimony could be taken and where somebody can enforce the attendance of 
witnesses. The surveyor-general has no power to issue subpoenas or enforce the attend- 
ance of witnesses, yet he is called upon to hear these cases. When I came into this office 
I found there was something like two hundred cases in the office that demanded settle- 
ment. I sent out some thirty or forty cases, but to what extent it has been going on 
since then I have not known. I have not followed up in the office here the progress of 
the cases. 



Testimony of W. H. Brum, of Marysville, Cal. 

W. H. Drum, residing at Marysville, Cal., testified, October 27, 1879, as follows : 

I have lived here since 1857. I came here in that year. 

Question. Are you familiar with silting that is filling Yuba Eiver bed ? — Answer. 
Yes, sir. 

Q. Please give us a statement of that filling, in your own way. — A. In 1857 1 bought 
a piece of bottom land on the Yuba, and paid a pretty good price, because I thought 
it was the best land I had ever seen. When I bought there, the banks of the Yuba 
were from 20 to 22 feet high at low-water. The stream was clear, with plenty of 
salmon-fish everywhere. My piece of land was two miles from Bear Eiver, and I had 
no difficulty with the water. The high water of 1853 barely came out of the river 
channels, over the banks, and filled a few of the smallest sloughs, but it never came 
up to the ridges. We got no sediment here, as we call it, until 1862. In that year our 
water was very high, aud it covered the whole bottom, in some places 6 feet deep ; but 
it was comparatively clear in appearance. Yet when it went down we found large 
banks of sand aud much of sediment. The current of the Bear River was rapid. After 
the fine stuff had passed down, the deposit left was chiefly sand, and not a great deal 
of it. The first flood left very little, but the succeeding ones, afterwards, left more of 
it. This has kept going on, from time to time, as the river grew riloy and thick with 
mud, during the winters, until it has now covered the bottoms. I had about 1,030 
acres and it has covered them. It has been doing that now, from time to time, until 
it lias reached the height of 25 feet. All my places are level. I was over there a year 
ago, looking for some wild cattlo I had in the waste, and I could just trace the line of 
the telegraph poles. The land has filled up within a few feet of the top of the tele- 
graph poles. I am satisfied that it was not so deep as on the other side. It was only 
from 12 to 20 feet deep all through that body of land. I had about 90 acres that I 
protected with levees ; the remainder was destroyed eight years ago. In 1875 these 90 



PUBLIC LANDS. 53 

acres which I protected with levees were destroyed ; the water flowed over the levees 
and filled the ground over 4 or 5 feet. It did not destroy the levees, but flowed over 
them, thus destroying the remainder of my land. I had a garden, fenced with a strong 
fence and posts. The tops of these posts have been 5 feet under for the past sis years. 
They destroyed all my land. My house was 20 feet above the low-water mark in the 
river, and last winter the water was up to the top of and around the house, and left a 
sediment of 8 inches. My buildings all set there still, but they are useless. It cost 
me $3,500 to put them there, and I had to go away and leave them on that land. I 
raised 94 bushels and 34 pounds of wheat to the acre on that land. That was a sworn 
statement before the agricultural fair. I had raised 103 bushels of barley per acre. I 
raised the first grain that was grown this side of Sacramento. All that land has been 
destroyed ; it is nothing but a swamp now, and you cannot go into it to-day. If I had 
that land to-day, in good condition, it would be worth $175,000. 

Q. Can you give the Commission any idea of the extent of the damage to the land 
on the Yuba ? — A. It has been destroyed ; it is stripped three miles wide and twenty- 
two miles long. 

Q. To what extent has this sediment invaded the plains land? — A. The water has 
now got up so that the levees will not prevent it from spreading over ten miles ; that 
is, the snow-water that comes down j and the water is at times 2 feet above the high- 
land. It is only the levees that protect it from the land, and when it breaks the levees 
it runs at random over the plains for five miles. 

Q. Taking a flood similar to the one of 1862, what would be the extent of the over- 
flow and sedimentary deposit at this time? — A. If we had the water come down as it 
did in 1862, 1 think it would sweep these levees by the board, and the water would 
come from the foot-hills at Auburn to the Sacramento River. I do not believe there 
would be any land that would not be under water. The water ran at that time 6 feet 
over the land, and the current there was rapid ; but now it runs slowly and the chan- 
nel is entirely obliterated. No man can tell now where the old original channel of the 
river was. The country then was covered with farms ; now it is a wilderness of wil- 
low trees, through which a man would have difficulty in finding his way. There was not 
a shrub on the land then 3 feet high where it was cultivated, and that was the case with 
all the land around here. There was the Briggs orchard, which was supposed to be 
worth $300,000. It is not worth anything now. Hundreds of cords of wood were cut 
off it a few years ago. There was no willows on it in 1862. There were a great many 
trees in his orchard, and he made a great deal of money out of it, until the debris came, 
when it was destroyed. It is now a wilderness of willows. 

Q. Is that deposit of benefit to the soil as a fertilizer ?— A. I have found this deposit 
to be no less than a poison. I have experimented with it for twelve years, and I have 
not been able to do anything with it. In five years they must put other levees where 
the levees are now, because the debris is rising 2 feet a year. Opposite the mainland 
there are four different channels. In this sandy waste, where nothing will grow, the sand 
is about 26 feet deep, and perhaps 30 feet. There was formerly only one channel where 
there are now four. The debris fills in and the water cuts another channel. In some 
places in cutting new channels buildings are swept away. This riley water will weigh 
11 pounds to the gallon, while clear water only weighs 8 pounds. In the summer-time 
it is heavier and thicker. In summer it will weigh 12 pounds to the gallon ; that was 
the difficulty with the levees last year. Their owners calculated for the winter water, 
and the summer water was too heavy for them to withstand it, and their levees were 
destroyed. I have tested it often in different ways ; I have fought the water year 
after year, and it has driven me steadily back, until I have lost all my land. I have 
put in crop after crop, and the water would steadily destroy them, until I was driven 
away. Many other persons, like myself, have spent many years on their farms and 
have built levees, but when a freshet came they would be destroyed also. 

Q. Are you acquainted with Feather River? — A. I am well acquainted with Feather 
River and. have been for twenty years. It has filled 8 feet. There is not so much 
mining on that river. The greatest damage is done on the Feather, Yuba, Bear, and 
American Rivers. 



Testimony of Thomas J. FilcJier, Marysville, California. 

Marysville, Cal., October 28. 

Thomas J. Filcher made the following statement : 

I have resided here for twenty years. In the fall of 1860 I purchased a claim where 
the Dry Creek empties into the Feather River. I gave $2,000 for two hundred acres of 
land. It was considered at that time one of the nicest little places in the country. 
There was no title to it, as the land was not surveyed. The first injury it received was 
in 1861-62, when the large overflow came, and since that time the injury has been in- 
creasing and the value of the land has decreased till now not an acre can be culti- 



54 FUBLIC LANDS. 

vated. It has all been destroyed, not directly by the debris, but by the water backing 
up from Feather River. The water backs up and stays upon it so long that it cannot 
be cultivated. That is about a statement of the condition of my place. Now there 
are other farms in the vicinity which are in the same condition. Mr. Barry adjoins 
me, and he is suffering from the same trouble. All this land was for grain-raising 
purposes, and since that time I got a patent to the homestead, but before I abandoned 
it I changed the homestead for the piece of land on which I now reside. It is on 
higher ground. In consequence of this change I was compelled to tear down my 
barns and outbuildings and rebuild my house. That was all in consequence of the 
overflow. 

Question. What is the area of the overflow by the backing up of Fall River? — 
Answer. It is very large. I should think it amounted to perhaps a thousand acres ; 
that is above my place one mile, where it spreads out. There is one circumstance that 
I would like to make known concerning this. I have had an opportunity to know the 
facts about it ; it has been stated to this Commission. I see from reading the testi- 
mony that a great deal of the debris that has accumulated in the rivers is washed from 
the agricultural ground, and that but a small proportion of the debris comes from the 
mines. I am so placed that I get an opportunity to test that matter. Dry Creek 
branches off up toward the foot-hills. On this branch there is no mine, so that what- 
ever earth comes down from that branch would be from the agricultural land. There 
is no debris from this branch. In winter there is a great deal of water that comes 
from the branch, but there is never any de'bris. This branch and Feather River meet, 
so that the water stands still. If there was any solution there it would be desposited, 
but there is no sediment on my land. That is positive evidence that there is no earthy 
matter brought into the river from the wash from agricultural land. If there was it 
would settle on my land, but it never settles there. Sometimes there will be a little 
scum, which shows that it is in consequence of the water from Feather River mixing 
with the other water where they meet. My land is injured by the water standing on it so 
long, but it is not inj ured by the debris. It will remain there all the year sometimes, and 
sometimes from six to ten months. Mr. Robinson makes a statement I saw that there is 
about twelve million cubic yards washed from the mountains, and 95 percent, remains 
in the canons; but it appears to me that if that was reversed it would be a more ac- 
curate statement. Ninety-five per cent, of twelve million cubic yards would soon fill 
up the caiions, and I think the estimate should be reversed. There is adjoining me 
large bodies of land that is in the same situation as mine. It is all cultivated land 
of the best quality that is destroyed in this manner. The owners have all spent large 
sums of money for leveeing. A neighbor of mine has just lost $12,000 by the breaking 
of the levee. This water did not destroy his land by depositing sediment, but by the 
backing up of the water and the overflowing of it. 

Q. When did hydraulic mining commence?— A. lam not well enough acquainted 
with it to say, but the first years I ever received any injury was in 1861-62. 






Testimony of Daniel Fraser, of Wheatland, Cal 

Daniel Fkaser, of Wheatland, Cal., testified at Marysville, Cal., October 27, 1879, 
as follows : 

I came to California in May, 1852. I have been farming since 1853. I was one year 
in the mines. Where I live now I have farmed ever since 1853. I have cultivated 
from 200 to 600 acres of land every year, more or less. It would average 300 acres. I 
live on a tributary of Bear River. Formerly it was a part of Bear River, and at high 
water the two streams mingled. That was in 1853. I bought my land from Henry E. 
Robinson and A. W. Von Schmidt. When I bought the land from Mr. Robinson in 
1856 I bought 160 acres. I was on the land before I bought it from him. When I 
bought that land he offered me 600 acres of high land at the same price that I paid 
for the 160 acres, and I would not accept it. I would not have had it then as a gift. 
The reason why I bought this low land was because it was bottom land. I did not 
want the plains land, which we call red land. I have farmed that land, and I find 
that the banks of the stream are a little higher than the land, which gradually slopes 
back from the lino of the stream. I have lived on that and farmed it ever since. They 
have been mining since 1852. The first thing 1 saw when I came into the country was 
the mines. They had been washing with long toms — that is, the short sluices — and 
they washed I could not exactly say how much. There must have been 1(50 acres of 
land washed, all told. It will wash on an average 18 iuches in depth, and the tailings 
run into the stream or creek that I live on. Every winter that has been the case. 
When they could get the water the depth of the washing has been 18 inches. The 
tailings all went into Dry Creek, and it has never filled the creek one inch. This wash- 



PUBLIC LANDS. 55 

ing is on surf ace ground, near Dry Creek. Sluice mining never fills up streams. I 
crossed Bear River in May, 1852, at Johnson's crossing. The stream was clear water. 
We had to get out at the time and walk up the banks of the stream. Coming up out 
of the bed of the river to the banks, I should say they were 12 or 15 feet in height 
from the bed of the river where we came out. The bottom of the river was gravel. 
I was at Camp Far West, at the mouth of Bear River, near where it comes from the 
mountains, in 1852. I did not go back again until 1858, and it was still the same there, 
not filling up at all. I saw, however, that the water was a little riley, but the rocks 
were still the same on the Bear River. I did not get there again until ten years after- 
wards — 1867-'68. The bank that formerly was 20 feet high was covered up, and I did 
not know the place. I asked a man where a certain house was. He replied, " There 
it is." There were willow trees on the place where the house had been. I was there 
again last year, and where Camp Far West had stood the ground was filled up 30 feet. 
The camp is there no longer. 

Question. To what extent has farming been destroyed on Bear River? — Answer. I 
should think that from fifteen to eighteen thousand acres has been destroyed. 

Q. How much on the Yuba River ? — A. I cannot state. Not more than that on Yuba 
River ; and it is wider on the bottom. 

Q. Are you acquainted with Feather River ?— A. No, sir. 

Q. What is your judgment as to the value of slicking as a fertilizer? — A. It is very 
poor. I have seen land on Bear River, upon which the flood came in 1862, which was 
the best land I ever saw. But since the flood of 1862 it has never raised two stalks 
of corn. 

Q, If the land is covered the depth of the plow by these slickings is it productive 
at all ?— A. No, sir. I had it on my place in 1862, and I have got that land into culti- 
vation by plowing deeply and manuring it. For the first six or seven years it never 
raised a single thing, but by plowing it 18 inches deep and manuring it, it now raises 
a crop. 

Q. Can you indicate the condition and character of the land which is now threat- 
ened with destruction from this cause ? — A. The bottom land has been entirely de- 
stroyed, and it has now commenced to cover up the plains land. 

Q. If you had such a flood as you had in 1862, to what extent would it come over 
this valley, in your judgment ?— A. It would come over this valley of the Bear River 
and run ten miles over where it is at the present time, toward the Sacramento. It 
would run at random all over the valley. I was here in 1852 at the high water, and 
in 1853. 

Q. When a flood of that kind spreads over the land and leaves an incrustation or 
sediment, what is the character of that sediment? Is it hard or sandy? — A. It is 
sandy ; it is a kind of white crust. I do not know what it is, but it comes on the top 
of the soil. 

Q. Is it a hard crust ? — A. No, sir ; it cracks open ; and that is what they call slick- 
ings. I have been acquainted with the land along the course of the river when it was 
the finest land I ever saw, and when it raised two crops a year— a crop of grain and a 
crop of corn ; and I have seen better vegetables raised on Bear River in 1854 than I 
have ever seen since. 

Q. The farm-lands on Bear and Feather Rivers have been pretty much all destroyed, 
have they ? — A. Yes, sir. 

Q. The character of the land now threatened is the higher plains land, is it; and 
that represents the entire valley ? — A. Yes, sir. Formerly, where my house stands, we 
put a spirit-level to the bottom of the levee, and the line just struck the sill of my 
house. To-day it strikes the top of the levee and the eaves of my house. The water 
to-day would break over my house if there was a flood. The bed of the river is 
pretty well up to my windows now. In 1852 I went to Bear River to see the stage 
of the water. It was pretty high. It had run over the banks, and these sloughs 
drained off the extra water, and it went down, and left no sediment ; but now the 
sloughs through which the water used to run and the little feeders from the hills are 
all filled up with sediment ; and willow-trees alone grow there, with a few cotton- 
woods. As to the land along the Yuba and Feather Rivers, I know something about 
them ; and the land down the Feather River, toward the mouth of the Bear River, is fill- 
ing also. There used to be, in 1852, as fine ranches as I ever saw at the mouth of Bear 
River ; and to-day it is a barren waste. There was a thousand acres of fine land there 
then, and the destruction has all been caused by hydraulics. The surface of the earth 
that was washed from the foot-hills was from eight to fifteen inches deep, and went 
right into that creek. When the water came up and overflowed the land it did not 
injure it a bit. The debris from the sluice-minings seems to be of a material different 
from that of hydraulic mining. 



56 PUBLIC LANDS. 

Letter of Roben-t Gardner, of Oakland, California. 

Oakland, Cal., December 1, 1879. 
To the honorable Commissioners of the Public Land Commission, appointed under act of Con- 
gress approved March 3, 1879: 

Gentlemen: In pursuance of an invitation from Hon. A. T. BrittOD, a member of 
your commission, to express my views upon the laws regulating the sale, settlement, 
survey, classification, and irrigation of the public lands in the State of California, I 
submit the following statement relating thereto. The opinions and suggestions em- 
bodied herein have been formed from a residence in this State of twenty-two years, 
and from an active interest in and contact with the public land service of the United 
States and the State of California for a period of over seven years, both as register of 
the Humboldt land office in California and as State surveyor-general. 

From careful estimates, the surveyed and unsurveyed area of the State of California 
consists approximately of 100,500,000 acres. Of this amount probably 12,500,000 acres 
are embraced within mining claims, private or Mexican grants, mission church prop- 
erty, Pueblo lands, Indian and military reservations, lakes, bays, navigable rivers, 
swamp, overflowed, and tide lands, leaving about 88,000,000 acres of public lands to 
be disposed of by the United States. Of this 88,000,000, about 50,000,000 acres have 
been surveyed. The great and productive valleys of this State, the grazing and tim 
ber lands have nearly all been surveyed, as well as several million acres of the dry and 
arid plains situated in the counties of Kern, Los Angeles, San Bernardino, and San 
Diego. But a very small portion of the residue of the unsurveyed area of California, 
something over 38,000,000 acres, can be utilized by the settler, or by those persons 
seeking homes on the public domain. For the most part the unsurveyed area of the 
State of California consists of the four following divisions, viz : 

1st. Those bleak and barren portions of the Sierra Nevada and Coast Eange of 
Mountains entirely destitute of vegetation and timber. 

2d. The desert and arid lands in the southeastern part of the State. 

3d. An occasional small mountain valley. 

4th. The grazing districts of -the foot-hills, not heretofore surveyed, which includes 
some oak and pine timber lands. 

The selling of the grazing lands of this State to purchasers in large tracts has been 
a theme of fruitful discussion. My experience leads me to believe that all the grazing 
lands in California of any value will be purchased by actual settlers as the State in- 
creases her population. A number of years ago, while register of the United States 
land office for the Humboldt land district in this State, I was informed by stock men 
holding large tracts of grazing land unsurveyed in what is known as the Bald Hill 
district, lying in the counties of Humboldt and Mendocino, that " if these lands were 
surveyed only forty-acre tracts would be purchased, or those subdivisions possessing 
living springs." On my application to the United States surveyor-general for Cali- 
fornia these lands were surveyed by the United States during the years 1872-'73-'74-'75. 
The records of the Humboldt and San Francisco land offices will show that thousands 
of actual settlers have taken advantage of this opportunity and settled upon these 
lands. In fact, as far as those lands have already been surveyed they have been 
utilized by actual settlers for stock raising, orchards, and vineyards. I believe it to 
be opposed to our theory of government to allow an individual to acquire and control 
large tracts of land (not desert), and that the people will be greatly benefited by the 
distribution of these lands through the hands of many small owners ; and that the 
country will gain more by such widespread industry than it can from the sums that 
may be realized from the sale of these lands to parties not residing on the lands in 
question. The great need of this State at the present time is an increase of the num- 
ber of small landholders. 

No more " scrip" of any kind should be allowed to be located on the public lands. 
Most all the "scrip" heretofore issued has been conceived in fraud, and located under 
the rules and regulations of the Land Department without authority of law. It seems 
to have been the policy of the Land Department at Washington to so incumber the 
homestead and pre-emption settler with useless rules and regulations, also local land- 
office fees, that the land which the settler has in contemplation must possess an in- 
trinsic value of from $3 to $5 per acre in order to cover the first cost and various ex- 
penses. At the same time extraordinary facilities were allowed the holders of land 
scrip to make their wholesale purchases of the public domain. 

Several million acres of surveyed land situated on tho western slope of the Sierra 
Nevada Mountains are practically reserved from sale and settlement by the action of 
the department at Washington in suspending the maps of the same, and declaring 
them to be mineral lands. These foot-hill lands are valuable for grazing, orchard, and 
vineyard purposes. This mineral suspension should bo removed except where shown 
to be mineral on the maps by the survey of the United States deputy surveyor; and 
the settler not compolled in order to obtain possession to incur the expense of produc- 



PUBLIC LANDS. 57 

ing testimony in order to show that the land in question is not mineral. When a patent 
is issued to a pre-emption or homestead claimant on the public domain it should be 
without any reservation of mineral that may hereafter be found upon the land. With- 
out an absolute title the claimant possesses no security for making permanent improve- 
ments upon the land. 

SURVEYING THE PUBLIC LANDS. 

As to the method of the survey of the " public lands" in California, I would advise 
that the rectangular system of surveying adopted by the United States in subdividing 
the public lands in its present state of perfection be adhered to. This method is the 
best and simplest that could be devised. The existing system is the result of many 
years' trial and experience. The contract system is the best, if faithfully executed, but 
has been shamefully abused in this State It is an undisputed fact that several million 
acres of land already surveyed in California can never be sold either to actual settlers 
or speculators, as these lauds are entirely destitute of vegetation and not susceptible 
of irrigation. They possess no value for any purpose whatever. The object of their 
survey has been simply to exhaust the yearly appropriations made by Congress for the 
survey of the public lands in California. Lands are being surveyed in this State re- 
gardless of their character and adaptability for sale and settlement. This is not the 
fault of the law, but of those in authority under whose jurisdiction these matters belong. 
The United States laws and the Surveying Manual specifically declare in what manner 
and what class of lands should be surveyed. It requires no topographical or geological 
survey of this State to determine the class of lands that are subject to survey. The 
appropriation act authorizing the expenditure of money for the survey of the public 
lands in the State of California specifically declares what classes of, land should be 
surveyed, viz: 

1st. Those adapted to agriculture without artificial irrigation. 

2d. Irrigable lands, or such as can be redeemed, and for which there is sufficient 
accessible water for the reclamation and cultivation of the same not otherwise utilized 
or claimed. 

3d. Timber lands, bearing timber of commercial value. 

4th. Coal lands, containing coal of commercial value. 

5th. Exterior boundaries of town-sites. 

The survey of mining claims is provided for under the special-deposit system. It 
will be seen that Congress in its wisdom provides for the survey of all lands in this 
State that can be of any benefit or practical use to its people, and endeavors to protect 
the national Treasury against the wasteful expenditure of the public moneys in the 
survey of bleak and barren mountains and desert wastes. I respectfully invite the 
attention of your honorable commission to the manner of the survey of public lands 
in California, and the evasion and abuse of the laws relating to the same. 

I would suggest that all the timber and grazing lands which remain to be surveyed 
should continue to be sectionized as heretofore and platted the same as agricultural 
lands. The same laws now apply, and should apply, to their sale and settlement. 
The present system of surveying mining claims by authority of the United States 
surveyor-general should be continued, as this method is in an advanced state of 
perfection. 

I would guard the rights of prospectors and miners seeking mineral deposits upon 
the public domain. They precede the agriculturist, the stock raiser, and the fruit 
grower. They have been and continue to remain the advance guard in the settlement 
of this State. They are entitled to liberal laws and an impartial rendering of the 
same. The miner, as well as the agriculturist, should be allowed the privilege of 
using all the timber necessary for actual development from unsurveyed land without 
restriction. 

MINING AND MINING LAWS. 

The mining laws for the government of quartz mining should be amended in this : 
that the miner should have the right to follow the ledge or vein, with all its spurs, 
dips, angles, and variations, to any distance, without regard to surface ground. With- 
out this right the miner has no security for deep mining, and may expend a fortune 
in finding the true course of the vein only to discover that his own location embraces 
but a small portion of the lode, and the adjoining claim, upon which not one dollar 
may have been expended, will receive the entire benefit of his discovery and invest- 
ment of his time and money. The old miners law was enacted on this theory, and is 
right and just ; and the spirit of our government in dealing with mining claims should 
be more in harmony with the old mining laws, which gave the locator his ledge and 
the right to follow it down at any angle the vein might take and wherever it might 
lead. A recognition of this right by the government would relieve discoverers of true 
fissure veins of costly litigation arising in cases where a portion of the vein or lode 
passes beyond and lies without the exterior lines of the surface ground. Square loca- 



58 PUBLIC LANDS. 

tions of mining- claims cannot be adopted where there is a true fissure vein, with its 
dips, spurs, and angles, but may be seriously considered in those mining districts where 
the limestone formation prevails, and where the deposits of ore are found in large and 
small bodies, and where there is an absence of a true fissure vein. All controversies over 
mining titles should be settled by the land department, which consists of the Secretary of 
the Interior and the Commissioner of the General Land Office, and the contests should 
be governed by the same rules and regulations that determine the settlement of other 
contests before that department, without the interference of local State courts. A 
vast amount of litigation has been occasioned where the imperfect records of old 
mining districts, for which no titles have ever been issued, and long since abandoned, 
would be brought to light as against subsequent locations made many years after, and 
where large sums had been expended in developing these subsequent claims. In view 
of this fact I believe it to be in the interest of those making mining a business that 
all local mining laws should be abolished, and subsequent locations should conform to 
uniform United States statute laws and. be governed by the rules and regulations 
issued in conformity therewith by the authority of the Land Department. There 
should be a limit of time in which the locator or mine owner should be allowed to ap- 
ply for and perfect their titles to their claims. This limitation of time should not 
extend over two years after the notice of discovery has been posted on the claim. To 
a certain extent the same laws should govern this limitation of time as are now ap- 
plied to pre-emption and homestead claimants. It is for the interest of both the gov- 
ernment and the State of California that titles to mining claims should issue as rapidly 
as possible to all bona-fide claimants. As the mining interests of the United States are 
so extensive, and in many States so important, it is very probable that in the near 
future a "mining department" will have to be created in order to render justice to 
this valuable and rapidly increasing branch of our domestic revenue. The facilities 
afforded by the Land Department at the present time for the settlement and disposal 
of controversies arising from mining litigations are totally inadequate for a proper 
and comprehensive adjudication of the same. " The means to the end" would be the 
appointment by the President of a " commissioner of mining," whose official actions 
should be subject only to appeal to the Secretary of the Interior. 

TIMBER LANDS. 

Timber on surveyed land should be sold to the people in tracts of not more than one 
hundred and sixty (160) acres to each purchaser at not less than two dollars and fifty 
cents ($2.50) per acre. The laws providing for the sale of these lands should be liberal 
in their operation, and should not require settlement. The enactment of such a law 
would be the means of converting rapidly all the valuable timber lands surveyed, or 
to be hereafter surveyed, into private ownership. The passage of such a law is ab- 
solutely necessary in order to protect the unsold timber lands from waste and destruc- 
tion. The timber lands are one of the important sources of our natural wealth, and 
should be protected for the benefit of future generations. 

IRRIGATION. 

The majority of immigrants coming to California are farmers in quest of public 
lands available for agricultural purposes. The tendency of this immigration, until 
within the last three years, has been toward the southern portion of the State, com- 
prising the counties of Fresno, Tulare, San Bernardino, Kern, Los Angeles, and San 
Diego. The average rainfall in these counties is less than in the more northern por- 
tions of the State. The greater part of the bottom lands, naturally irrigated by overflow 
and percolation from the rivers, was either taken by Spanish grants, or has been secured 
by settlers under the various laws for that purpose. The remaining lands of the val- 
leys of the southern portion of the State are equally fertile in character, but unavail- 
able for profitable agriculture without irrigation. Under the laws of California, 
enacted at an early date, when mining was the prominent industry of the State, water 
rights were allowed to be acquired, and the water diverted from the natural bed of 
the streams. This claim and appropriation of water has been recognized as a legal 
right without regard to the riparian rights of the occupants of the land living below 
the point from which the water was diverted. The result of this system is that all 
the available waters of this State are covered by some kind of claim possessing more 
or less legality. Should our present system contiuue, and these claims to water be 
further recognized, in a few years a system will grow up different in form, but practically 
in effect similar to that which prevails in countries possessing laws of primogeniture 
and entail. Vast tracts of our lands aro worthless without water. The settler may 
own the lands, but if tho water and the price of its use lies within the control of 
another man who may at will withhold it from him or levy a price upon its use suici- 
dal in its effect upon the profits arising from tho cultivation of his land, he will 
occupy a position similar to that of a tenant at will, who turns over his whole produce 



PUBLIC LANDS. 59 

to his landlord, after deducting the amount consumed in producing it. This condition 
of things is sure to exist in the near future, unless remedied by prompt action on the 
part of the legislature of this State. Land and water should be inseparable where the 
land in question is susceptible of irrigation. I am well aware that this problem of 
irrigation is one of great complications, involving, as it does rights already acquired, 
the disturbing of values already created, and the adjustment of rights that have not 
yet accrued. I would therefore suggest that, as far as I have given the subject 
thought, it would seem that the better plan would be for the legislature to appoint a 
competent commission to make an examination of all the streams of water available 
for purposes of irrigation in the valleys, to create irrigation districts as extensive 
and as numerous as each stream will irrigate, and with power to obtain water rights 
already acquired on these streams by purchase or condemnation. I believe some plan 
which involves these principles, if enacted into a law, will avert the evils which seem 
to threaten the farmers of California in connection with this subject. 

DESERT AND ARID LANDS OF CALIFORNIA. 

As before remarked, there are millions of acres of desert and arid land in Southern 
California. The ancient records of this State show that ever since the settlement of 
the country by the Spaniards the rainfall has been very light and seasons of extreme 
drought have been frequent. Wherever the old missions were established in that 
section of this State it is shown that ditches and extensive canals had been dug for 
the purpose of irrigating the lands upon which they depended for their support. 
Though many of these canals have long since been abandoned they can be traced over 
many portions of Southern California. There is no question as to the fertility of these 
arid and desert lands if properly irrigated, and where so irrigated will yield abun- 
dant harvests. The question of irrigating the above-mentioned lands is one of great 
importance to the interests of this people, and one which is attracting great interest 
among men of capital and intelligence. Every effort put forth to increase the area of 
agricultural land by the irrigation of these desert lands in this State should receive 
the hearty support of the State and national legislature. Every man who directs his 
attention and money to the praiseworthy object of reclaiming these lands is entitled 
to the just term of public benefactor. This reclamation of desert lands by means of 
irrigation can be only accomplished, as a general rule, through the agency of organized 
bodies of men, possessing large capital. It should be the policy of our government to 
grant title to the lands in question to those persons who will provide for a complete 
irrigation of the same. This class of lands possess no value at present, and never will 
possess any while they continue to remain in their present condition. I would have 
the government determine by geographical survey of our State just what portion is 
desert land, and for which there is sufficient accessible water for the reclamation and 
cultivation of the same. Congress passed a law March 3, 1877, relating to desert lands 
in California and other States, providing for their sale and reclamation. This law was 
imperfect in many respects, but was all that could be expected, as the nature of the 
country to which it applied was not fully understood by our national legislators. 
Under this law numerous irrigation canals have been constructed in the Tulare and 
Kern Valleys, and large tracts of land have been completely irrigated, and a large ex- 
tent of country has been thrown open to cultivation which heretofore was a desert 
waste. In some cases these lands have been reclaimed by farmers, who organized and 
expended large sums of money to conduct the water from the streams to their lands ; 
while in some cases capitalists have undertaken the reclamation of these lands by 
irrigation, with successful results, after the expenditure of immense sums of money. 
1 would suggest that a law should be passed providing that individuals should be 
allowed to take up these lands in large tracts at the nominal rate of 25 cents per acre, 
on proof of complete reclamation by means of the irrigation of the same. They can- 
not be profitably reclaimed in small tracts of 640 acres. That section of the law of 
March 3, 1877, restricting the sale of desert lands in tracts of 640 acres should be 
amended. This restriction has delayed materially the reclamation of these lands and 
been the means of preventing capitalists from investing their money to a greater ex- 
tent. An individual who will make one blade of grass grow where none has ever 
grown before is a public benefactor, and the government should donate to him for a 
small compensation all the desert and arid land that he will successfully reclaim by 
the irrigation of the same. I would have the proper safeguards thrown around this 
law, and would make it impossible for the speculator to purchase an acre of this class 
of land until he had filed indisputable evidence with the proper officers that he had 
fully and completely reclaimed the same by irrigation as shown by growing crops. 
In this way the water is rightfully used, and the desert is made to produce crops where 
no green thing had ever grown before. Legislation by Congress providing for a speedy 
settlement of this question of water rights and desert lands would be of great benefit 
to the people of this State. 

With these few brief and general remarks and suggestions upon the sale, settlement, 



60 PUBLIC LANDS. 

survey, classification, and irrigation of the public lands in the State of California, I 
have the honor, gentlemen of the Commission, to remain, 
Yours, very respectfully, 

ROBERT GARDNER. 



Testimony of Hon. William 31. Gwynn, of San Francisco, Cal. 

Hon. William M. Gwynn, of San Francisco, testified, October 9, as follows: 

Question. What is the best way of utilizing the timber lands? — Answer. As regards 
the timber lands of this State, they are of course important, not only to the State, but 
to the whole country, and for thirty years they have been constantly destroyed, for 
want of proper attention on the part of the government; and if there is not some 
additional legislation on the subject they will ultimately be all destroyed. My judg- 
ment is that the government ought to have supervisors or foresters to protect these 
lands from depredations. Each one should have a range or district which should be 
well known, and their authority should be well recognized. If they are interfered 
with it should be understood that the law was being violated by such interference. 
These timber lands have at all times been very troublesome. When I was a planter 
in Louisiana, we used to have our levees threatened by timber men who used to raft 
their logs down the river. There are the same kinds of depredations here ; the waste 
is absolutely enormous, though I do not know so much about it as I did years ago. 
For twelve years I was canvassing the State among the mountains and have seen the 
most horrible destruction of timber that could be witnessed almost anywhere in the 
world — great trees cut off and the butts used and the balance left on the ground. We 
have timber enough here to last until Gabriel blows his horn if it is taken care of ; 
but it has not been taken care of since I have been in the State. I would have these 
foresters sell the timber by stumpage and have the title to the lands remain in the 
hands of the government. Every tree that should be sold should be sold £or some 
useful purpose. If the government will not protect the timber, they ought to sell the 
land. They ought to sell it in a way that will enable people to buy it for proper pur- 
poses, and not for speculation. My son has a very large mining property where he has 
to use a great deal of timber, and he is now rafting it down the Columbia River. Last 
year he pre-empted some land there, and he took it up under the school section. He 
secured this land up in the mountains in order to raft the lumber down to his mines. 
It is becoming such an important question to the miners that wherever they can't 
secure a portion of this timber land that they can look to in the future for mining pur- 
poses, they will, I think, be reduced to the necessity of stopping their mills. This I 
know of my own knowledge. The destruction of the timber is due far more to wan- 
ton carelessness and waste than to utilization. The timber is beiug taken off in such 
a way as to leave a large part that is not utilized. I do not think the virgiu forest 
is injured much by fires. It is the trees that fall and decay that are easily ignited. 
The hunters and stockmen are careless and let the fires get in. If the timber was cut 
off, the land could be used for pastoral purposes. Where you strike the snow-belt, high 
up in the mountains, the land remains in the hands of the government ; below the 
snow-belt it should be sold, and I think the land ought to belong to the State, because 
the State can utilize it better than the government. No one person should be allowed 
to take more than one-half section of timber land. We ought to guard against tak- 
ing the land in large quantities. I would make the mill-owners buy the timber from 
the land-owners and I would not allow them to monopolize the land and the timber. 
It would be better for the mill people to buy the logs outright than to sell them the 
land. That is a matter of experience. My son would rather buy the logs than cut 
them for himself. He can buy thena for a great deal less. 

Q. What system would you suggest for getting irrigable lands and getting them 
covered by actual settlers? — A. I do not think it is possible for the government to get 
any advantage from the irrigable lands, for such lands cannot be made available for 
crops unless they are irrigated, which is so expensive that people can't afford to pay 
much for the land. There are large quantities of irrigable land in this State which 
could be irrigated, and there is plenty of water for that purpose if it could be secured. 
They are now entirely worthless, but with irrigation they will be among the most pro- 
ductive lands in the State. I do not think a system of irrigation can ever bo estab- 
lished here that will be effective, unless it is done by the United States or by the 
State under a national or State system. The United States cannot directly do it, be- 
cause that would make a precedent for other improvements in the State. It can be 
accomplished by the State, but, under the present circumstances, I do not think there 
is very much prospect of ever utilizing these lauds by a public system of irrigation. 
Private individuals can't do it, and it will have to be done by driblets. 

Q. What would you do with the pasturage lands ?— A. When I was in Congress, 
many years ago, we had that question up. There had been lands opened to pre-emp- 



PUBLIC LANDS. . 61 

tion at $1.25 per acre for years, and nobody would buy them, because they were not 
worth it, and we introduced and passed a law grading the price of these lands, grad- 
ing them down to a nominal figure, and they were all purchased, and now some of 
these lands are worth from ten to twenty dollars per acre in the State of Mississippi, 
and it is looked upon there now as a great monopoly ; but this system of granting 
lands to railroads I have always fought for, because it brings in the railroads. These 
lands must be graded in price to make them utilized by the people. I would limit 
the quantity of land a man could purchase. You can't raise stock unless you have 
large quantities of land. One section is worth nothing for pasturage purpose. 

Q. What would you do with the irrigable land? — A. The present pre-emption and 
homestead laws should prevail in regard to irrigable lands, because they can be util- 
ized for agricultural purposes, but land fit only for grazing purposes I would sell in 
large tracts, in which latter class I would not include any land that can be redeemed 
by possible irrigation. I think the settler ought to be allowed to take up large tracts 
of this pasturage land, and occupancy of it should operate in the same way as improve- 
ments on agricultural land. I would leave the disposition of this land a matter of 
private enterprise, because, whereas one man would have to have a certain amount of 
this land, another man would require a much larger amount. There is a very objec- 
tionable uncertainty about the ownership of the school sections. The supreme court 
of California has decided that the act of Congress gave the school sections to the State, 
and the government of the United States has never tested that decision, and it stands 
on record now that these lands belong to the State ; but it will remain an unsettled 
question until the government of the United States tests that decision or acquiesces 
in it. I drew the law (I was in Congress then) under which this privilege was given. 
Literally, it is the reading of the law that these lands belong to the State. The exec- 
utive branch of the government takes the other ground. It ought to go to the Supreme 
Court of the United States and have it decided. We have made application for these 
lands as timber lands, but do not know whether we have the right to cut the timber 
off them or not. 

Q. Do you think that the water should become a property severed from the land, or 
should the right to the use of the water inure in the land where it was first utilized ? — 
A. I would not like to give an opinion on that question. One man's opinion does not 
have any effect. Under the constitution which has been adopted we have appropri- 
ated the water rights to the State, and whatever a man's opinion may be, we have to 
accede to that. I will say, however, that I have my doubts whether or not it will 
be best to give the owner of the land the control of the water. I think it would 
stop enterprises of the greatest possible consequence. I do not think any system of 
irrigation can be made thoroughly effective in those portions of the State where the 
lands are unreliable to make crops without irrigation, unless it is done by the United 
States or the State. It requires to be done on a large scale, and needs a great amount 
of capital ; and I do not think private capital can be so centered as to make a system 
of irrigation, therefore it has to be done by driblets. 



Testimony of Arpad Haraszthy, San Francisco, Cal. 

Arpad Haraszthy, president of the Vineculture Association of the State of Cali- 
fornia, testified at San Francisco, October 13, 1879, as follows: 

I wish to speak in relation to the vine -culture in California. I can state, approxi- 
mately, the entire quantity of land in the State, and how much there is that is good 
for vine-culture. The best lands for vine-culture are not yet taken up. They are too 
poor for anything else, and they have been neglected heretofore for that reason. The 
chaparral land in the foot-hills are the best for vine-culture. Such lands as those I 
have mentioned are not good for pasturage, and are entirely unfit for the raising of 
cereals of any kind, because crops will not grow upon it. These lands are so poor 
usually and so very steep that you cannot use farming machinery ; you can barely 
use a plow. They usually lie at a low altitude ; you will find them on the coast not 
higher than 500 or 600 feet above the sea, and when you go into the interior you will 
find them from 2,000 to 3,000 feet above the level of the sea. These lands are com- 
posed of red earth, mixed with clay and gravel. They are the best lands for vines. 
They are called red lands, and they must have a great deal of gravel and iron mixed 
with it. It does not require that this soil should be very deep. Two or three feet of 
soil is a very good depth. We have some land like that in Sonoma, which is about 
800 or 1,000 feet above the level of the sea. 

You only find bunch grass here and there, probably not more than a hundred 
bunches of grass to the acre. It is only fit for growing rabbits. There are millions of 
acres of that land that will do to raise vines upon, and it will be the richest land we 
have for that purpose. Then the Mojave Desert (from what I have seen of the cli- 



62 PUBLIC LANDS. 

mate) will grow grapes. They tell me there is an enormous rainfall there sometimes. 
It requires very little moisture for grapes, not more than 7 or 8 inches during the 
year. 

The vines will thrive better in a dry year and even two dry years than they will in 
one wet year, and hear grapes very abundantly. The vine takes as much nourish- 
ment from the moisture as from the soil ; of course it impairs its growing qualities 
and its productive qualities. A moist climate will produce more grapes to the acre 
than a dry climate, but even the minimum of production is a paying one in this State. 
These lands are all dry, and they have produced grapes in great profusion. They are 
larger and have a richer flavor than those growing immediately under a hill, and. the 
crops ripen all the year. In my judgment the land in the northern portions of the 
State would not be better adapted to grape-growing than in the southern. The foot- 
hills at a high altitude in the northerly part would make the light wines, and the 
grapes in the southern part of the State will make the heavy wines and raisins. 

Question. What is, the highest altitude at which you can grow grapes ? — Answer. I 
have known grapes to grow well at an altitude of 7,000 feet. I think it is best between 
1,800 and 2,000 feet. 1 have seen grapes growing at that altitude — i e. 7,000 feet— 
which made very excellent wine, and from that down to 30 feet above the level of the 
sea, practically at the sea level. A great many vineyards in Sonoma and Napo Counties, 
down in San Jose", will grow at a less elevation than about 100 feet above the level of 
the sea. Sacramento County is about 120 feet above the level of the sea, and the vines 
grow there luxuriantly. Of course there is a distinction in the quality of the vines ; 
the higher they are the finer they are, even up to the altitude I have named. I cannot 
answer for anything above that. 

Q. What proportion of the State will bear these vines? — A. It has been variously 
estimated, but there is about 40,000,000 acres of vine land in this State. More than 
two-thirds of it is this kind of land that I have spoken of, and I think there is more 
poor vine land in the northern part of the State than in the southern ; that is, above 
the lines of Monterey. I believe that more of the lands of which I have spoken is 
above than below that point. There is probably no portion where the grapes will not 
grow, except it is on the western slope of the Sierra Nevadas, because fogs and frosts 
come in on the western slope of the Sierra Nevadas, where they are any distance from 
the coast, say twenty miles ; they will grow from there clear to the interior, and they 
will thrive with three inches of rain one year if they have more rain the next year. 

I was engaged in vine culture some years ago and had one of the largest vineyards 
in the State. I got my education in France. I was secretary for a commission which 
was sent out to Europe to get grapevines, and I passed through the grapevine regions 
of Europe. In my opinion, so far as my experience has shown me, our production, on 
an average, is about double per acreage that of France, and I think we have got fully 
as much, if not more, ground that is adapted to grape culture than France has. I 
think we can make from two to three times as much wine as France can, if we plant 
the same acreage. We are producing very little wine here. I do not think our pro- 
duction is over 7,000,000 of gallons, and we have a capacity for producing over 
10,000,000 of gallons. We would be able to produce after three years' time 30,000,000 
of gallons of wine annually. We have crops enough to make 20,000,000 of gallons 
annually. The annual production in France is 1,500,000,000 gallons. If you will put 
an average on that production and compare it with our production, in proportion to 
the acreage you will find our production far ahead of theirs. 

Nine-tenths of all the wine made in France will not stand shipment, and will not 
keep over one year ; it is generally drank in the immediate vicinity of where it is 
made ; whereas I have failed to see, in the last sixteen years that I have given atten- 
tion to the subject, one gallon of California wine that would not keep and stand ship- 
ment to any portion of the world and be improved by that shipment. Our wines keep 
under adverse circumstances and bear handling, and theirs do not keep with the utmost 
care and the best of handling ; the reason being that our grapes contain an abundance 
of saccharine matter. You will find wines made from grapes in France containing as 
low as 8 or 9 per cent, of alcohol. With us it is very hard to get wine that contains 
less than 11 per cent, of alcohol, and the average is 12^ per cent. This is why our 
wines are said to be harsh. Considerable age will of course improve and mellow 
them. Capital has been so high and hard to acquire that the wines here have never 
been kept long enough before use. 

There is probably no old wine in the State. Age does not eliminate the alcohol, but 
it mellows it; and if these wines were old, they would keep without any difficulty. 
They have an individuality of their own, which I think is a good thing. Why should 
not California wine be very different from all other wines? 

It is a mistake here that we have been trying to produce something like their vine- 
yards produce. We should have our own type. 

We find that the greatest drawback to the sale of our wines is owing to American 
snobbery. We have a production of 2,500,000 gallons of wine every year, nine-tenths 
of which is drunk by foreigners. It is only the Americans who won't drink American 



PUBLIC LANDS. 63 

wine. The average production during the last eight years has been 6,000,000 gallons. 
Last year we shipped away 2,000,000 gallons of wine, and the year before that we 
shipped away 1,500,000 gallons. This wine is all made here, and large quantities 
have been distilled into brandy and vinegar, because (in 1876) the wine was so low in 
price and the production so great (there being more than 7,000,000 gallons made that 
year) that the vinegar factories made their vinegar out of wine. I know fine lots of 
wine that could have been purchased for less than 15 cents per gallon, and one lot 
went for 10 cents, although it cost from 12£ to 15 cents to produce it. 

The average production in Sonoma Valley is about 350 gallons per acre. The aver- 
age production in Los Angeles County is 200 gallons per acre. The average produc- 
tion in Napa County is between 400 and 500 gallons per acre. 

There is a place in Napa County where 12 acres produced 17 tons of grapes, and there 
are places where the land produces 2£ tons per acre. 

Our wine business has increased very greatly in the last five years, and as our wines 
are liked better, better prices are paid for them. 

Q. What is the life of a vine? — A. The life of a vine has no limit. After 100 years 
there are vines still living and producing. After the slip is set out it takes about four 
years to produce the grapes. 

The varieties of grapes we use are thus bought by the commission of which I spoke. 
There are said to be 480 varieties, but there are several that we rely upon. 

The Zinfaudel grape is that from which we produce the claret wine. The best class 
of heavy wines, like Burgundy, are made from the Burgundy and the black Pienau 
and Genasche. The best white wines are still wines, like the Hock and Sauterne. 
They are made from Chasselas and the Riesling. They can make very good wine out 
of the raisin grape. Mission grapes make a very poor wine, because its component 
-parts do not seem to be such as will answer for wine-making. 

The foreign vines brought from Europe will not bear until from seven to eight years 
have passed, but ours bear at the end of four years. When foreign vines are brought 
here the skin becomes a little thicker and the berry gets very much larger, and the 
saccharine matter becomes very much more abundant, and the wine made from them 
has more alcohol in it ; the acid of the grape diminishes. 

The French say that the Phylloxera came from America, that our climate develops it 
on the plants. I do not believe that it did originate in America. Professor Riley says 
he has known it for forty years. We found Phylloxera about four years ago in Sono- 
ma Valley, and it is confined to that valley. I have found it nowhere else. It takes 
about three years after its first appearance to destroy the vine and kill it. The first 
year it is on the vine its appearance is noticed by a little color and the edges turning 
up instead of down. There is also a little furze on the leaf itself. The next year, in 
the spring, you will find a very short growth in the canes from the buds. Another 
year the growth has stopped entirely, and there is hardly a sign of sap. 

Q. There are about two millions of acres that have been withdrawn from settlement 
because they were mineral. Do you know anything about those lands? — A. Yes, sir; I 
know something of them. These lands would be more valuable for grapes than for 
mining, because we do not know how much mineral there is in them, and we do know 
they will produce grapes. I know vineyards in Europe that have been yielding for 
1,200 years. We do not know of any mine that has been yielding for that time. I 
think the land would be used for small homes if it was thrown open to settlement. 
The small growers sell their grapes to the wine-makers. The grape yield produces 
over $3,000,000 worth of wine per year. It could be increased to $50,000,000. 

The vines are becoming killed out in France, and the people here are fast becoming 
wine-makers. 

The reason that wines are becoming adulterated is because of the demand for them, 
and there is not a sufficient supply to meet the demand. One man can manage alone 
and take care of about 15 acres of vineyard, and 15 acres of vines is about ten times 
more profitable than any cereal crop. 

I think the only solution of the temperance question is to substitute wine for alco- 
holic drinks. If wine was drank instead of tea and coffee there would be no dyspep- 
sia and no drunkenness. We find all over Spain, Portugal, Switzerland, France, Ger- 
many, and wherever there is much wine-drinking, there is very little drunkenness. 
I do not think the California wine, if steadily drank, would have any effect upon the 
noses of the drinkers. They would have to get their polish by some other method. 

Q. How would you dispose of the land ? — A. I would, leave these lands to be settled 
up under the homestead and pre-emption method, just as the other lands are. 

I think California can produce wine for all America when there 100,000,000 people. 
I know of no reason why our wines should not be as good as the wines of other coun- 
tries, and the only reason why our wines are not is that they are not allowed to acquire 
age. Louis A. Rodier, who sells the best champagne we have, only sold the vintage of 
1871 or 1872 last year. His firm has about $5,000,000 in their business. It takes some 
years to make old wine. You see there is the cost of the bottles, which is a large and 
important item. There is 50 per cent, saved in purchasing our wines. California wines 



64 PUBLIC LANDS. 

would be cheaper in the East if transportation was not so high. Then, too, we have 
no hard wood to make casks of. All the hard wood is in the mountains, and it is very 
difficult to get, so we find it cheaper to transport our casks from the East. The casks 
have been cheaper for the last few years. 

I would leave these lands just as they are, giving them to everybody who chooses to 
come in and get them, for the wine industry is so assured from this time forward be- 
cause our wines have such a reputation abroad. The only difficulty we have met with 
was right here at home. Doubtless there are thousands of people in France, whose 
vineyards are destroyed, who would take up these lands if they thought they could get 
them for $1.25 per acre. There might be some inducement given to emigration by allow- 
ing the emigrant to enter a quarter of a section if he planted out, say, 20 acres in vines, 
and then give it to him. 

We need more water for irrigating wine after it is made than for irrigating the vines. 
That is a great drawback. The wine is cheaper than the water down in the San Jose" 
district. I think that water should be under the right of eminent domain, and then be 
divided up and allowed to be used by all free. I do not see any reason why the land and 
water should not go together. 



Testimony of A. T. Harriman, of San Jose, at San Francisco, Cal., relative to the present 
system of surveying and irrigation. 

A. T. Harriman, of San Jose", Cal., testified at San Francisco, October 10th, as fol- 
iows: 

I am deputy surveyor. I have had contracts under the United States for the last 
five or six years, and have them now. I think the present system of surveying is an 
excellent one, but I think it should be improved. I would make some changes. I think 
that our manual has become obsolete and. old, and newer and more scientific methods 
should be allowed the surveyors, so that they could be able to make better surveys 
and make them quicker, in order to do away with this terrible array of complaints 
which seems to be made everywhere against the settlers— our own settlers as well as 
other people. If the work is properly done the present system is adequate to the pub- 
lic service. If the lines are run well and carefully and the corners are well set tbey 
will last. A few years ago I found posts that were set in 1850 and 1854 ; but they were 
of oak wood. If they had been pine they would have lasted only one or two years. I 
think there should be at the commencement of every fourth township a permanent 
monument, and if you can get them closer than that I think it will be better. I would 
improve the surveys as much as possible, and think the surveys could be improved 
now were it not for the niggardly policy of the government. The pay is entirely in- 
sufficient. I would have two different kinds of pay attached to the contract system. 
I would pay per mile in subdividing and townshiping, and I would then pay for the 
topography and exploration separately per section. I will illustrate the second idea. 
I have heard it very often stated that under the present system men will get hold of 
a whole range or township by simply acquiring some sub-division of forty or eighty 
acres of a section upon which a spring is located. That being the only water it of 
course controls the land. The surveyors at present do not care for those springs ; they 
are not directed to look for them at the present time, and the rates being so low and. 
the work being scattered as it is all through the country, the only thing the surveyor 
thinks about is to get it done, and it is a common thing for it to take eight or ten days 
to find the place where to begin, and then we have got to hunt four or five days for 
the corner. And often we are under a big expense in hiring extra help, &c, and when 
we find our corners there is often only one township instead of three or four to be sur- 
veyed ; and we don't think anything about exploration, but only about getting done 
and not losing money. 

A deputy surveyor should have better pay and have a better method of doing his 
work. I believe in more instrumental methods. I do not use a solar transit; we do 
not need a solar transit in our county; we determine the points by solar observations. 
The mountain transit is all the surveyors use. We run our lines as we go along, and 
instead of having one flagman I have three. One flagman is for the line, and the flags 
on the two sides are for the topography. A flagman goes over to a prominent point 
or junction of a creek, a prominent peak, a clump of timber, or a little bench on the 
mountains, aud holds up his rod, and I know at once where the points all are. I 
measure the distance to this point and put it on the map instantly, and sketch in my 
topography as I go along, and thus give to the government a perfect plat of the whole 
township instead of a little index plat that shows little or nothing. That takes just 
four times as much time, and it would give three times as much data. I always take 
altitudes, but I have been informed that it was not necessary. I always carry a 
barometer in my pocket to determine the altitude. If any man hires me to make a 
survey of his ranch, of his timber, or anything else, it is none of his business how I 



PUBLIC LANDS. 65 

get my points. I am supposed to understand my profession, and the quicker and 
better I get them the better it is, and that should be the idea. The United States 
should leave it largely to the discretion of the deputy surveyor, with this additional 
caution, that an inspector should be appointed to j>ersonally inspect the work before 
it is paid for. If the deputy surveyors are men of sufficient capacity to take charge 
of the survey, we should not need inspectors. I do not think the matter should be 
left to the discretion of the Surveyor- General, for he has not time to look after these 
things. 

I would improve the manual. It can he done in this way: A commission of four or 
five able, intelligent surveyors, men who understand their business thoroughly, should 
be selected ; they should be selected from men having experience in the field ; and in 
a very short time they could make up a manual and select much better methods of 
surveying. The Surveyor-General should then see that this manual is followed by the 
deputies. 

The government allowance of variation in closing lines in plain open land is too 
much ; in the hilly land it is not enough. No man can afford to measure by a chain 
and compass in such way as to close anywhere near the government allowance on ac- 
count of the small amount paid now. If you all instrumentally work there is no nec- 
essity to increase the amount of allowance on the mountains and hills — if you put it 
on a higher scientific plane. It costs $1,000 sometimes to get one small claim of 160 
acres of land surveyed. I charge $10 a day, and when I furnish men and teams I 
charge $20. If these surveys were properly done it would not cost so much, but there 
would be more or less of this to do no matter how the surveys were made. The corners 
are sometimes destroyed, but in some places the surveys nave been most wretched. 
The surveys on the east side of the Santa Clara Valley are wretchedly done. I have 
yet to find a single line that measures a mile accurately, and have yet to find the first 
corner-stone. This valley is 20 miles long north and south, and 12 or 15 miles wide. 
I have known men whose work demonstrated that they were not fit to be employed 
as deputy surveyors. I have known this in several instances. I think where the 
survey of a country is to be a basis of a title the surveys should be made accurate and 
with a proper description of the land, and with the corners well set, so that at the 
end of fifteen or twenty years they can be readily resurveyed. I think, if it was prop- 
erly done with the corrections I suggest, that any competent man could find out where 
the section or some subdivision of it was. The present system is ingrafted in the 
people; it is simple, and the people can very easily find out how to locate a section. 
I do not think there is any necessity for any additional notice. The settlers generally 
keep track of the matter, and know where their land is. 

I am in favor of a national system of irrigation under State or United States auspices. 
I think the experience given to us by engineers ought to he crystallized and a system 
should be worked out by which the States or the United States becomes the source of 
all irrigation ; but I am afraid that is somewhat like shutting the door after the horse 
is stolen. There is no system at present. I think if the contract system was entirely 
abolished, and if parties were sent out into the*field and equipped by the United States, 
that the cost would be so terrible that it would be unbearable. 



Testimony of TV. T. Haywood, engaged in irrigating San Bernardino County, California. 

Mr. W. T. Haywood, engaged in irrigating business in San Bernardino County, 
California, testified as follows : 

I have had some experience in the matter of irrigating lands for five or six years. In 
m J judgment the public lands and waters should never be separated. In Spain, Italy, 
and all other countries except India, the waters and the land are not separated. In 
India all the canals are owned by an English company and the waters sold to the 
natives who lease the lands. This is an interesting question to every man in this State 
who has lands. The difficulty of securing water rights permanently depreciates the 
value of this kind of property to a very great extent. There are thousands of acres of 
lands, not only in San Bernardino County but in other parts of the State, that could 
be made available, and would be made so at once and be occupied, provided there was 
a certainty of getting a title to the land and water alike ; for title to the land alone is 
of no value. Now the difference in valuation of land with water over that without, 
in the same neighborhood and having the same soil precisely, will be from fifteen to 
twenty dollars per acre. For instance : I have been president and superintendent of 
the Riverside Company, and we have spent $230,000 in furnishing water and irrigating 
about twelve thousand acres of land. Now this land was put upon the market with 
other large bodies of land as early as 1853 by proclamation of the President. It laid 
there unoccupied as government land until 18G5, when in conequences of greenbacks 
being at a low figure it was bought up by men in California at$1.25 per acre from the 
5 L C 



66 PUBLIC LANDS. 

government. It laid there idle from 1853 to 1865, and then it was held from 1865 to 
1874, when I purchased it. Now that land was apparently of no value, not worth ten 
cents per acre. Without water it could not have been beneficial in any way. Having 
put water upon it we have sixteen hundred r^eople occupying that tract of land, who 
have four hundred thousand orange trees growing, and one hundred thousand fruit 
trees, and we have a very prosperous and thrifty class of people there. That is the 
result of one irrigation scheme. I do not believe extensive irrigation is possible with- 
out organization. There should be a government system of irrigation, and there must 
be some organization, or else you must leave the matter to work itself out. We under- 
stand that the law by which we have acquired our water rights from the State has been 
confirmed by Congress and that we are safe. Other people have different views and 
they are contesting the matter with us in the courts. All such actions have a tendency 
to depreciate that property, to prevent its sale and settlement. 

And. then there is another important point which has not been settled in any court 
in this State— what is termed "riparian rights." That question has been before the 
courts time and time again. It was brought up in Judge Neely's court a year a'go 
last September in a suit instituted by a man named Talbot against parties in San Ber- 
nardino County, but he did not decide the question. The matter should in some form 
come up before the Supreme Court, and then Southern California will prosper and go 
ahead. 

I am not in favor of pasturage homesteads. No benefit can be derived from them, 
because they cannot get water. I tell you there are not a hundred, acres of land in the 
southern portion of Calif ornia that can be used without water, and there are hundreds 
of thousands that can be ivitli water, and it cannot be obtained unless by irrigating- 
wells. I would favor pasturage homesteads if there was any land that could be thus 
utilized. 

As regards the condemnation of ditches and water rights to be used for public pur- 
poses, if such condemnation is made the parties who have invested their money should 
be indemnified, I would be satisfied for the government to come in and condemn all 
our ditches and then pay us for the money invested, and let them adopt a general system 
of irrigation. Either the national government or State should adopt such a system. 
We would be perfectly willing to pay for the waste land. Of land which could be 
reclaimed in California there are about 10,000,000 acres, which, if abundantly snpx>lied 
with water, would never, in my opinion, require any manure. It is a patent fact that 
land irrigated with water taken from mountain streams and rivers will produce dou- 
ble the quantity that lands irrigated with artesian wells will. I have the facts to 
prove that proposition. It is the observation of all intelligent farmers that land thus 
irrigated will produce the most money and improves in quality. The difference in 
value of lands in Spain is calculated upon the basis of land irrigated and land not 
irrigated. You can buy land for $10 an acre equal in every respect with that costing 
$2,000, excepting that it is above the line of irrigation. It may be in the same field 
and identically the same soil. 

In Yalentia, Spain, you pay $25 an acre for the use of land for agricultural purposes, 
and you can buy adjacent land of equally good character at the same price and get a 
perfect title, but without water. We have in San Bernardino and Los Angeles Coun- 
ties land which has been under cultivation for thirty years, and produces as good a 
crop now as it did at first, just by irrigation and without manure. It takes less water 
£ear after year after the soil is soaked. We sank wells in 1874 and 1875 to the depth 
of 45 or 60 feet and got fine water. The ground was as dry as powder from the sur- 
face to the bottom. Now wherever we have irrigated that land it is moist to within 
a few feet. It is a positive fact. There is another important thing in regard to irri- 
gation. Where there is not an abundance of water always the land will be saturated a 
little at a time— and after a while it will require only a little surface water and no deep 
soaking. It will then only require annually sufficient water to cover it. A 3,000-inch 
stream (miner's inches) will cover 12,000 acres 3.73 inches deep. At that rate a 5-inch 
stream covers 20 acres to the same depth. It will do it as a fact. There may be some 
loss by solar evaporation. You can easily make a calculation of the actual amount of 
water required to irrigate a given tract of land and measure the streams. The amount 
of water that is available for irrigation could be measured by scientific gentlemen in 
the field, and they can make reports containing all the data needed to show how much 
land in any section can be irrigated. I have been all through Los Angeles and San 
Bernardino Counties with engineers who have made such estimates. 

Thero is another matter that is very important to us and that seems a great hard- 
ship. We have added $1,000,000 to the tax-paying property of Sun Bernardino County 
by the investment of $250,000. Now then we are taxed for our canals. They tax the 
land which is under irrigation $15 to $20 ail acre, while that not reclaimed is taxed on 
a basis of $1.25 per rare. It is all of the same quality and value without the water. 
Nowhere else, on the face of the civilized world do they lax canals. In Spain they 
give every encouragement possible to private parties. Canals should be exempt from 
taxation. Oui property is doubly taxed. 



PUBLIC LANDS. 67 

In regard to these large tracts of land and how they should he developed, I cannot 
conceive any way in the world in which they can be made available without a combi- 
nation of capital. The result in San Joaquin, where men have combined and engaged 
to build canals, has been that there has not been a day since they commenced work 
that there has not been litigation. There has never been a question settled. They 
are all the time quarreling. 

I have been over vast tracts of territory examining it, with a view to irrigating it and 
taking it up as desert land. If there was a certainty about this law, I know of several 
large tracts of land which can be put under irrigation immediately, and could inaugu- 
rate a system of irrigation that would suit all the parties interested — which is a very 
strange thing. There are several agricultural centers where there is not a family 
who does not want to enter into a combination with some large irrigating system. It 
costs them too much money and labor to do it for themselves. They will sell all their 
rights at once and take their pay in water. Would not this be a benefit to everybody 
that wanted 10 or 50 acres of land to have that land put on the market at a price they 
can afford to pay ? If you put water on 5,000 acres, into 160-acre tracts, they will sell 
it right off to the first man who comes along. The present law and system are not 
applicable to the present condition of the lands. Either allow the irrigation to be 
done by the companies, or allow the State governments to do it, or inaugurate a 
national system. If the government had kept the control of the water it would have 
been a good thing. Now they cannot get it without reimbursing the parties, because 
having encouraged parties to take up land and put water upon it, the government can- 
not now equitably confiscate their property. 

There is another question which will come before the nest legislature here, which 
is whether there shall be one water system and one price. In my opinion that can 
never be done. The price must have direct relation to the cost of obtaining it. In 
some places you could obtain the same quantity of # water we have in some places for 
$20,000, and it would not be right for those parties to receive the same compensation 
we do, who have so much larger capital involved. As I before said, we would be per- 
fectly willing for the government to appraise our water property and pay us for it. 

There are certain difficulties in disposing of the timber lands. The law operates in 
this way : For instance you sell a hundred acres of land at $2.50 per acre. Suppose 
the timber on that land will cut 100,000 feet to the acre. I know some that will cut 
300,000 feet of lumber. One-quarter part of tthat may be fine, choice lumber, which 
would be very valuable to lumbermen. A will come to some such man and s,ay, "I 
have found a fine batch of timber." The lumberman sends his expert to examine it. 
He finds, perhaps, 100,000 feet of timber, of which much will be worth $15 per thou- 
sand while the balance will be worth $3. He sends his teams down and buys it, or 
the man making the location supplies it himself. That gives the same man an oppor- 
tunity to select other similar tracts. Now what is the use of 160 acres to a saw-mill 
man ! He cannot do any business on such a basis. Nobody is to-day making a profit 
of a dollar a thousand on lumber in the foot-hills. I would put the j urisdiction of 
the timber lands in the register and receiver. When lumbering is done in a forest it 
leaves the ground encumbered with brush, and fires break out and the whole country 
is destroyed ; but where the forests have not been disturbed and are dense the fires 
will not run to any considerable extent. As long as the government owns forests 
they should be protected by foresters, or persons specially designated to care for them. 
A long time ago, through the columns of the old National Intelligencer, the govern- 
ment advertised the country around Pnget Sound as being magnificent timber coun- 
try, and invited people to go into it. 1 was among the first to do so, and put up a 
saw-mill, and then made application to the government for permit to buy timber. 
I wanted to buy 5,000 or 10,000 acres, either by paying stumpage or in some other 
manner. This was in the spring of 1863. I was informed then that I must confine 
myself to 160 acres. It is very difficult, generally impossible, to get a good mill loca- 
tion and good timber together. You have got to put your mill wherever you can get 
good water, and afterward hunt up the timber and get it where you can. The next 
year I went to Washington and put this matter before the department and wanted 
the right to cut timber, but got no encouragement. I spent $50,000 in that business, 
and yet there was no way in which I could get the timber to work my mill with, and 
I was informed that surveys would be ordered to go on, but that if I trespassed upon 
the timber I would be liable to imprisonment and fine. 

About 1856 the government sent out circulars addressed to all the mill and business 
men on Puget Sound and in Washington Territory inquiring where they had erected 
their first saw-mill, how much timber they had made the first year, how much the 
second, how much they expected to make the next, and so on. A copy of this circular 
came to me. I did not fill it up, but other parties did. Some parties who had made 
4,000,000 feet put down their product at 12,000,000 feet. The next year a district 
attorney came out with those very documents and prosecuted every man cutting tim- 
ber on government land. When you want to prosecute a man in Washington Terri- 
tory or Oregon you have to go before a grand jury and get him indicted, and you 



68 PUBLIC LANDS. 

charge him -with cutting timber on section 3, range 4 south, &.c, as the case may be. 
The case drags along for awhile, and you get as witnesses the men who cut the timber, 
and they are asked, "What do you know about Mr. L. cutting timber on government 
land ?" and the other side will contend and the judge will rule that you must confine 
the evidence to the particular section cut over and which is specified in the indict- 
ment. You must confine the prosecution to the indictment section 3, range 4 south, 
and the witness will most always be unable to tell what section of land the timber 
was cut from, and your case will fail. That is generally the history of timber prose- 
cutions. In order to prosecute successfully you have got to have surveys made. The 
present system of timber protection works badly. 



Testimony of Patrick J. Eealy, of San Francisco, Cal. 

San Francisco, October 16, 1879. 

Patrick J. Healy, secretary of the California Land Keformers' League, testified as 
follows : 

This is an institution or society that exists for the purpose of getting abetter system 
of tenure of public land for settlers. It has a central organization here in the city, 
and has correspondents throughout the State. There is no other organized society at 
present. 

I have been a miner and I say (and believe I represent the organization of which I 
am speaking) that the public lands in the United Sates should not be sold to any per- 
son, and that no person has the right to sell, bequeath, or in any way encumber the 
land by selling it, so as to give anybody a moneyed right in landed property. The fact 
of use should be the only title to the land. We simply mean that we wish to have a 
tenure of land in this country, and I would suggest for myself that the land where it 
exists in townships should be so surveyed that communities and colonists could have 
better facilities to settle upon it. For instance, a man now is supposed to live and 
settle upon a claim he pre-empts. I would like, and I think it would be to the inter- 
est of settleri!, especially in the northern portions of this country, in Washington Ter- 
ritory and Oregon, for settlers to be allowed to pre-empt one quarter section and live 
upon another, and not lose their right to pre-emption by so doing. This right thould 
be extended to all those who wish to avail themselves of it ; that is a community sys- 
tem under the present law of the United States. That, I believe, would be something 
that does not exist under the present land laws. 

Question. Is the present acreage enough 1 — Answer. I think in some cases the acreage 
is entirely too much, and in other cases not enough. One hundred and sixty acres of 
land in some of our southern counties would not be much for a pasturage ranche. I 
would not give a pasturage homestead. I would reduce the pasturage ranche as it 
existed in old times, and I would not survey it at all. 

Q. What have you to say about irrigation ?— A. The question of irrigation is a ques- 
tion of great importance, and should be discussed by the national government. I be- 
lieve the general government ought to undertake all this irrigation and that private in- 
dividuals, so far as they have gone on improving the laud by irrigation, should be recom- 
pensed by the government, and that it all should be controlled by the government. 
No individual has the right to control the natural resources of the country to the ex- 
tent that the government has ; hence it follows that the government should hereafter 
control irrigation. I believe that the land now called arid and the desert land by a 
wise system of irrigation would be all producing land in the future, equaling our foot- 
hills. There is no reason why the canons could not be made available as natural res- 
ervoirs, such as they have in India and have had for hundreds of years. They could 
store the water there for future use. This system suggests itself to every one, but 
private ownership can't carry it out. I would not allow any man to own land so that 
he can mortgage it and sell it. The use of the land should bo the only title to it. He 
might sell the improvements, but the lands themselves he never should. He ought 
not, by right, be allowed to sell it ; then if he can't sell it, of course he would not 
want any more than was necessary for his own use, and the question of land monopoly 
would then cease. This would not stop settlement of the land, but would extend it. 
People would then be compelled to incorporate, and rely more upon each other's honor 
than upon any bounden duty. 

Q. How would you acquire the right to use the land? — A. File his right with the 
government — go on the land as they do now, and let the government say, after you 
have been there a sufficient length of time you can have the land. Occupation is, 
after all, the right to the land. How has this city been acquired except by that very 
right f Let the government hold the land for the people. 1 would draw a distinction 
between those lands that have been already granted, if you wish to preserve the vested 



PUBLIC LANDS. 69 

right, and after the death of the holders it should revert to the government. I am not 
in favor of any law which would take away that which any person has honestly ac- 
quired, without recompensing him, nor does the "body which I represent have any 
such communistic ideas. We are not communists, but American citizens who wish, 
the preservation of American institutions. 

Q. What would you do in the case of land the occupant of which has died after 
having placed valuable improvements upon the land? How would the government 
dispose of the improvements ? — A. Sell his improvements for the benefit of his heirs, 
just as you would any other property. 

Q. To whom should, the occupancy or use of the land be accorded ? — A. To his heirs. 

Q. Then the government should sell the right to use the land ? — A. That would be 
its only method of raising taxes for its support We think this plan is feasible. We 
see that there is agitation all over the world. It is not confined to England or Ireland, 
and in this country it will be a great problem. As soon as the land is all gone here, 
the land question will become an important one. This commission is probably the first 
of a great many commissions which will have to deliberate upon this question. Any 
man who has lived here knows the liability of persons to get shot for trying to get the 
use of an old piece of land, if it is not agreeable to the surrounding settlers for him to 
have it. That would cease if the government held the land in trust for the people. 

Q. What is the difference between your process and the other processes for disposing 
of the land? — A. In our process the government could not give the right to use the 
land to any persons who did not use it, the land would not go to persons who would 
not use it. The difference between that and the present system is this : that the gov- 
ernment allows the land to go to persons who hold it idle for centuries, while the peo- 
ple around are starving. Parties obtain possession of land and leave it vacant, and by 
a law it remains vacant. Under our proposed system this cannot exist. No person 
could hold land vacant for speculative purposes. 

Q. How extensive is that holding of land without occupation ? — A. I would say that 
the major part of it is held under such tenure — held vacant for speculative purposes, 
without any improvement whatever. Sometimes they run up a fence, but as a rule 
they do not. If the fence is put up it is usually made to serve as a notice to keep off 
the property, and they have men hired to keep people from settling on their lands. 
That system exists all over Nevada and all over the southern portion of this State. It 
is not so extensive in Washington Territory or Nevada as it is here. 



lestlmony of A. T. Herrmann, surveyor and civil engineer, San Jose, Cal., relative to rect- 
angular surveys and cost of surveying. 

To the honorable Public Land Commission, Washington, D. C. : 

Gentlemen : In reply to some of the questions of your circular, issued under the 
act of Congress approved March 3, 1879, 1 beg leave to offer the following reply: 

My name is A. T. Herrmann ; I have lived in California since 1861, and have been a 
resident surveyor and civil engineer in the city of San Jos6, Santa Clara County, Cal- 
ifornia, since 1866, having practiced my profession principally in the counties of Santa 
Clara, Santa Cruz, San Mateo, Alameda, Merced, San Benito.' and Monterey. 

Have never sought to acquire title to public land for myself, but have* necessarily 
seen a good deal of the working of the public land laws incident to my professional 
duties. 

Deeming, however, the questions regarding the system of public surveys and their 
execution of infinitely greater importance to the professional surveyor than the work- 
ing of the land laws, I would in my answers or suggestions rather confine myself to 
matters bearing directly upon the '-'survey," and leave matters of law to persons hav- 
ing made that part a specialty. 

I have no hesitancy in saying that I consider the rectangular system of surveying 
as the very best one which can possibly be devised. It is easily understood by the 
professional man as well as the layman. Its methods of nomenclature and location, 
naming by townships and ranges even long in advance of the subdivision in every 
part of the country in a manner at once precise, short, and unmistakable, is perfect 
and simplicity itself. 

Its correction of foreseen and unforeseen errors, following closely the lines and 
methods of the geographical division of the globe, are so well planned that, even if 
but indifferently executed, they make large mistakes impossible, transferring them- 
selves from point to point and from old districts into new ones. 

Its excellent subdivision into sections and the different parts of a section down to 
the smallest mining claim, taking as a base the measure of length everywhere used 
and known to every child, is at once so clear, so simple, and so easily understood by 



70 PUBLIC LANDS. 

anybody having mathematical knowledge enough to conceive of a square, that it 
would he impossible to discover anything more to the point or better adapted to the 
wants of the people. The most uneducated backwoodsman, knowing simply the 
points of the compass by the sun, and with arithmetical knowledge stopping perhaps 
at the figure 4 or the number of the fingers on his hands, will readily learn and find 
any given subdivision of a section, without even so much of a chance of a mistake, 
while I have found it an everyday occurrence that settlers, having the experience 
gained by watching the survey of one township, even without the slightest knowl- 
edge of the art of surveying, would, some of the section corners being established, 
invariably locate prominent objects or pieces of choice land m the smallest legal sub- 
division, without making a fatal error as to general location of the correct subdivision 
lines. And, being so easily understood, the system has become really a part of the 
penates of the American settler. He knows it by heart, he swears by it, he instills it 
into the minds of his children, to whom perchance the school-teacher gives a few more 
valuable hints furthering a more thorough understanding than the rough and unhewn 
conception of the old man ever dreamed of, until it has become so permeated with the 
average American having any dealings with land matters, that to uproot it out of 
the minds of the people would, in my opinion, be really a far harder task than devis- 
ing a new and better one. 

Its facilities for re-establishing lost corners and the percentage of chances of getting 
them, as near as may be, into the original positions is greater than in any other sytem 
of surveying, as it will take fewer and straighter lines to prove the missing point. 

Its definitions for the purposes of chains of title in property is so far ahead of any- 
thing else in that line in the world that a comparison is hardly possible. Compare, if 
you please, the abstract of title of a subdivision of a Spanish grant with that of a 
legal subdivision of a piece of public land. In the one case it will take at least one 
very good lawyer, one or two good surveyors (often a dozen or more), and endless ex- 
planations, resurveys, and descriptions over pages and pages to properly locate and 
define the object and, so to say, to pin it down beyond a doubt, while in the other 
case, the proper legal subdivision once being given in the patent, no other elucidation, 
research, or survey is necessary, but a simple reference to the official plat, the authen- 
ticity of which is beyond a doubt, proves the entire question at a glance and saves the 
people lots of money, which otherwise would find its way into the pockets of lawyers, 
surveyors, searchers, or agents. 

Wherever you test the system on its merits you will find it true to the core as long 
as its execution has been administered by competent, trustworthy, and honest haudc, 
answering to perfection all the purposes it was devised and created for ; and when- 
ever, according to popular complaint or official inquiry, it has been found wanting 
the cause may safely be put down to the abuse of its rules and maladministration, as 
well in its spirit as in its detail ; and right here is where an improvement is urgently 
called for. Just as little as you would think of letting the sailor run the instruments 
of the Coast Survey or making the common soldier the commander of a regiment at 
the eve of battle, just as little you ought to think of deputizing any but the most 
competent and properly trained professional men to make the surveys of the public 
lands. 

" Oh," it is said, " there are only straight lines to be run, and anybody can do that/ 7 
when really just that is the most difficult problem of all, the solving of which has 
made the best heads of the world ache and quail. 

But is it really only the running of a few straight lines? If so, I misunderstand 
the spirit of the manual entirely. To my mind the deputy surveyor is the means by 
which the government gets acquainted, and thoroughly acquainted, with its vast do- 
main. He is sent there, not only to set a few corners and blaze a few lines, but he is 
appointed a committee of one to thoroughly explore the new country, getting not only 
such information as may happen to lay openly along the side of his line,, but make it 
a point to see everything worth seeing, everything which may be of any value to 
either the government selling the land or the settler in search of a homestead. 

But how, in practice, is the execution of this idea ? — I am professionally almost 
ashamed to refer to the books and books of field-notes on file containing from one end 
to the other barely anything but " 40.00 chs. I sec. cor., 80.00 chs. cor. to sec. — ; land 
third rate," and five lines of general remarks at the end, and a township sketch, if one 
at all be added, more like the scrawling of a schoolboy than like the result of the in- 
telligent survey of the professional surveyor. 

But, leaving the discussion of individually bad work for another place, is really the 
deputy to blame for such bad results, and should not the blame rest with somebody 
else ? The deputy, and especially the young deputy, may start out on his first con- 
tract with the very best of intentions. He has carefully studied the manual and goes 
to work with a will, but he soon finds out that he is put into a very awkward position. 
He organizes his camp, he buys or hires his animals and wagon, he pays in full or in 
part for his provisions, and he starts out. Let us follow him : 

He reaches the nearest place of his work after traveling from say five to ten days, 



PUBLIC LANDS. 71 

and, after he has been obliged to leave his wagon afc the end of the road and resort to 
packing over trails that must be seen and tried to be appreciated, and getting some- 
where near his point of beginning, he hunts and hunts in vaia for a corner. He loses 
a day,- and another one, and perhaps a half a dozen more, and finally may even be obliged 
to pack back and retrace lines miles off so as to get a safe and well-authenticated 
place to commence from. 

At last he is certain to be right ; he starts in for good, and just by accident he re- 
members the day of his starting from home, and, lo, he sees that he has been out two 
full weeks already ; that he has, as it were, paid already wages to two chainmen, one 
flagman, one marker and axman, and one cook, aggregating about $7.50 per day, for 
twelve days ; that he has not earned one single dollar so far, and that the country is 
so rough that, at the slim mileage allowed by an economical government, he has a still 
slimmer chance to work ahead of the daily growing debt. Is the deputy, after men- 
tally considering all these little items, in a fit mood to play the role of the faithful 
explorer and expounder of the manual ? Will he look to the right and left ? Will he 
leave his instrument and crawl through yonder deep canon to examine the very curi- 
ous formation on yonder cliff, looking as if it might be a vein of some metal-bearing 
rock anxious to be developed, and add thousands to the wealth of the people ? Or 
will he try to penetrate yon thicket, looking so fresh and green as compared with the 
dried-up aspect of the barren mountain peaks, to ascertain on what legal subdivision 
the clear spring of water is located, the possession of which will virtually be the pos- 
session of the entire mountain range ? Or will he not rather be inclined to curse and 
swear when, after a day's work in the broiling sun — work as hard as any ever invented 
by man — he sees that he cannot possibly make more than one and one-half or, at best, 
two miles a day, and not even that if he strictly follows the rules of the manual, and 
it is quite a thankless job to retrace and search for days and, finally, perhaps find the 
error miles off, and be allowed one or two miles for retracing somebody else's mistakes, 
consuming twice and treble the time of new work. 

But he may not find the error ; what then ? Is it probable that the error will be found 
out at once, or is the government supervision such that there is no danger of immedi- 
ate discovery ? I think the less said the better about the examinations now in vogue, 
where the law restricts the government to such a small compensation that no efficient 
professional man can be found to do the work. 

To return, however, to our subject ; our deputy has finished his township and he pro- 
ceeds to the next one, some thirty or fifty miles off. He sees at once that he has to 
change his modus operandi; that he has to lop off all extras, first of all being neces- 
sarily all explorations outside of the immediate vicinity of his line ; and that his sole 
aim and cry must be, "Ahead ! ahead ! hurry up ! we must make so much, so as at least 
cover expenses." But as he proceeds he finds, first, that only about one-third of his 
township is surveyable — the balance being dense ccaparral, practically impenetrable 
to the claim unless a trail at an additional expense of $12 to $20 per mile be cut — 
and, next, that his closing is not within limits. There are two dilemmas : First, he 
finds only one-third of the expected work to do which he has gone to a large outlay, 
based upon the best obtainable information ; and, second, there is an error somewhere 
either in his work or somebody else's work, such a thing as a lot of contiguous town- 
ships being, generally speaking, a thing of the past, and there the same thing repeats 
itself, with perhaps this addition by way of change, that one of his horses dies, that 
his wagon breaks down, or a pack rolls over the precipice, taking a mule along with 
it, or that one of the men gets disabled, and another green hand has to be hired at 
high wages, and, in order to be in strict accordance with the rules, has to be sent on 
horseback some fifty or sixty miles to the nearest justice of the peace to be sworn in ; 
or, perchance, as I happen to know by bitter experience, his instrument is upset and 
smashed up, and he has not been able for some reason or other to have an extra transit 
along. All these things can happen, and they do actually happen a great deal of tener 
than the department is aware of, playing quite an important item in the possibility of 
a margin on a contract. 

However, pur deputy worries through his contract and returns. First, of course, he 
has to pay his men ; there is no credit in that line, even if he can find a grocer who for 
the consideration of high prices and bad provisions will trust him ; and then the notes 
have to be made out. That, especially for mountainous country, takes more time than 
generally assumed, and when finally everything is ready and he casts up his accounts, 
he finds that if the department allows him for the miles he thinks he is entitled to, he 
covers expenses and makes from $3 to $4 per day, and in lucky cases even $5. But now 
begins the waiting. He files his notes, but there are piles of them ahead of his notes. 
Why ? Because an economical government cannot afford to pay draughtsmen enough 
to keep up with the demands of the service, and so the days wear on until it may be 
ten months or a year from the time Mr. Deputy started out to the day when he finally 
receives his warrant, the amount of which often falls short considerably of what he 
knows is due him. And does it do him any good if in such a case he appeals ? Let those 
who have tried it answer that question. 



72 PUBLIC LANDS. 

Is it a wonder, under these circumstances, if the deputy steps down from the high 
plane of professional pride and integrity and simply looks to the financial side of the 
question and governs himself accordingly ? I think" not ; but I do think that the rem- 
edy lays in the hands of the government, and there alone. 

Begin at the root, and appoint permanent deputies solely with a view to their pro- 
fessional standing and to their character. Have it understood that, once a deputy, 
the position is one of honor and trust, which once abused brings dismissal and disgrace 
forever, but that otherwise the position is an assured one, no matter who be elected 
President or what the politics of the deputy may be. Let it be understood that the 
appointments will be made with a view to possibly employ the permanent deputies 
all the year around, so that they may find it to their interest to devote their entire 
time to their office ; that they will be paid in such a way that they can afford to do 
good work and be honest, allowing them such a mileage that possibilities which must 
necessarily be taken into consideration by every prudent contractor need not be 
dreaded as swallowing up every little margin without a chance of recuperation ; and 
that they will have a superior officer, one a thorough surveyor and engineer, whose 
sole business it will be to personally examine and supervise their work, and who will 
attend to his duty without fear or favor. 

Let the office work be conducted in such a way that the least possible time may 
elapse from the date of filing the notes up to the payment for the work ; or, better 
yet, make a rule by which, after a preliminary examination of the notes by the 
draughtsman department, and the supervising officer's certificate as to the j)erformance 
of the field work, a certain percentage may be paid the deputy, so as to take him 
out of the hands of the sharks who are anxious to advance him money at ruinous 
rates, and enable him to square up his bill of expenses. 

The appointment of a thorough, practical surveyor as inspector or examiner I deem 
one of the most important and beneficial improvements. He should be a man well 
acquainted with the State, should hold his office during good behavior, and be paid 
enough to do his work well. He should examine all surveys without exception, so as 
to be able to keep the office thoroughly posted as to where surveys are needed and 
ought to be pushed ahead. 

As to the surveys themselves, I would suggest that the manual be remodeled with 
a view to keep step with the general advances the profession has made since the be- 
ginning of the systematical public surveys. The plains and valleys, generally speak- 
ing, have been subdivided long ago, and what is left is partly hill iand, mostly mount- 
ains, and to a great extent the very roughest mountains of the State. It is well 
enough to confine the deputy to compass and chain as long as he has only to carve 
away on the wide and open plains, where nothing is met to prevent exact and good 
chaining and good closing a long way within the legal limits. But when it comes to 
rugged mountains, covered partly with timber and partly with brush, cliff following 
chasm and precipice deep caiions in quick succession, one peak overlooking the other, 
the line being one continuous obstruction from the south line to the north line of the 
township, and when then it becomes desirable to get a pretty correct topographical 
sketch of the country, then I think it would be very advantageous to tell the deputy 
to use every advantage science offers him, to show in the very use of his instruments 
that he understands his profession, and that as long as he gets his corners into the 
right place and well set, gets his line well marked and his topography in good shape, 
the department will be satisfied and say, " Well done, faithful servant." 

If one man, with a good tachymeter and two or three rods, or even with a good light 
mountain transit and the proper and careful use of stadia rods, can give better results 
and do quicker and better work than another man who, with compass and chain and 
strictly in accordance with the rules of the manual, worries ahead and tries to do 
impossibilities, I should think that it would be to the general advantage if the newer 
method of the first man be adopted. 

Why is it that the great surveys of other nations and our own coast survey invaria- 
bly employ stadia measurements, getting results much more exact than obtainable 
with the chain ? Anybody who ever has tested the comparative merit of common 
chaining and of stadia measurement in rough country will, without hesitation, testify 
to the fact that the comparison is about the same as between an open compass and a 
transit, and that the rougher the country the greater the difference in favor of stadia. 
To measure a mile in, say, the roughest parts of our coast range, and get it within 
legal limits (keeping, of course, within the time a surveyor at the highest present rates 
can afford to spend on that distance), is simply impossible ; while with stadia measure- 
ment, properly and carefully done, it becomes a question of a difference of a few links 
only. 

How is the best topographical work the world knows of done ? Surely not with 
compass and chain ! A glance at the newest tachymeters and the result of work done 
with them on the railroad lines of the Old World, at the accuracy of the canton maps 
of Switzerland, of the military maps of Germany, and of the ordinance survey of 



PUBLIC LANDS. 73 

England will soon answer that question and dispel any doubt.as to the value of instru- 
mental measurements. 

Would not the very use of this method, adapted to the peculiar and intensely prac- 
tical wants of our country, be the best solution of the desire expressed in certain quar- 
ters to change the present system altogether and give it into the hands of the Geolog- 
ical or Coasc Survey, or other scientific survey, and produce, with but slight additional 
cost, exactly the thing clamored for, and giving all the information which possibly 
can be wanted in the next one hundred years about those of our public lands which 
up to to-day are un surveyed ? 

Agreeing that this desire for better surveys is justified, that the Land Office should 
be able to afford settlers better and more detailed information than that had at pres- 
ent, that for military and industrial purposes the township plats ought to give a better 
guide than they do at present, would it not be better to improve by new methods of 
measurement on the old system at a small additional cost than to turn the entire 
question over to some scientific body, gauging the cost by the experience of our coast 
survey ? How many townships would it take, surveyed by extending first the triangles 
of the coast survey and then plane-tabling the detail in the same way as the coast 
line, to bankrupt the nation? And would that be of any practical value to the set- 
tler, the bone and sinew of our country, unless it was simply a collateral to lines de- 
fining areas and boundaries of homesteads which necessarily had to be established 
separately ? 

It may be perfectly right for European nations, and especially for France, Germany, and 
Italy, to go to an enormous expense and prepare the most accurate topographical maps of 
their country that can be produced by human skill. The results so obtained, no matter 
at what cost, are to them worth every penny paid for them ; but it does by no means 
follow that the same argument applies to the United States, and, more strictly speak- 
ing, to the as yet unsurveyed portions of the public lands. We are a nation of peace ; 
they are nations of war. We do not exhaust the treasures and the labor of genera- 
tions to prepare for war, but they do. We as a nation are more interested in the 
question whether the next batch of prospective settlers can find homes and live on 
them in the enjoyment of our liberties and. in peace, building up villages and towns ; 
they want to know which hill is high enough to rake, if crowned by cannons, all the 
surrounding country and destroy towns and villages at the command of a military 
chieftain. We hope that never a battle may be fought over our valleys, nor our 
mountain passes be climbed by armies eager for conquest ; they know that their broad 
fields have been the chosen battle-ground for the nations of the world for thousands 
of years ; that nearly every great commotion between the nations of the Old World 
has been decided by the sword on practically the same fields ; that the battle-grounds 
of the nations repeat themselves, have done so and will do so, and must be studied for 
the sake of self-preservation ; that on the proper and most intimate knowledge of their 
country may depend the fate of the nation; that every other consideration has to give 
way at this point, that they must know at all hazards, at whatever cost. And they 
do know their country well. Their maps are models; but do they as much as even 
care for a property line ; do they even pretend to show them except for military pur- 
poses? Not even the fine maps of free republican Switzerland take the trouble to 
inform the citizens where and what they own, although every contour line is care- 
fully given, to the highest glaciers and ice-crowned peaks. 

If the idea of such a survey had prevailed when the now settled and densely popu- 
lated portions of our country were " open to entry," there might have been some sense 
in it, to combine the detailed topographical survey with the right-angled system ; but 
to commence at this late day, when none but the roughest lands are left unsurveyed, 
looks rather like shutting the barn-door after the horse is stolen. 

I do believe that it would be worth while for the department to make a thorough 
trial in subdividing by instrumental measurement, combined with a rough topograph- 
ical survey. Have it done by competent hands and give them all the liberty they 
want, with instructions to give the fullest returns as to classification, topography, 
water, minerals, and springs, and any other important object which, like a spring in a 
dry country, could be covered with the very smallest subdivision for the purpose of pro- 
venting the sale of all the surrounding lands. Let the deputy sketch his topography 
in such a way that with his notes he can prepare an index plat on a scale of at least 40 
chains to an inch, which shall be well drawn and give all main topographical points by 
actual measurement, made as the deputy may choose either by chain or by stadia or by 
triangulation. Let him carry his aneroid constantly with him, so that he can give alti- 
tudes of all main points, mountain passes, and cultivable lands ; and above all things 
pay him a sufficient amount per mile and a sufficient amount per section for exploring 
and topographical measurements, that he may not be obliged to make the one ques- 
tion, " Can I come out without losing money," be uppermost in his mind to such an ex- 
tent as to make him derelict of his dut-ies. 

I have no doubt the surveys so made, properly supervised by a permanent inspector, 
will soon find favor with the public and with the department, and I can assure the 



74 PUBLIC LANDS. 

honorable Commission that the work can be done, and can be well done, by educated 
professional men, without doing injustice to the spirit of the manual. And I am fur- 
ther certain that the additional amount of money so spent upon each township would 
not alone be well invested, but would effectually stop all growling and trouble about 
bad surveys, badly or not at all set corners, imaginary topography, and all the endless 
array of other complaints at present made against the field-work of the Surveyor- 
General's Office. It would classify the land in a detailed and intelligent manner, de- 
scribing it at length in the general notes, thereby giving the Land Office all facilities 
needed to deal understanding^ with the people and discriminate between the bona- 
fide settler and the land-shark, and it would offer sufficient topography for all prac- 
tical purposes that might arise for the next fifty years, and offer the general compiler 
all he can possibly claim for the purpose of mapping the State. 

I am afraid that I have dwelt at greater length on the subject of the " survey" than 
agreeable to the honorable Commission, and although most willing to say what little 
I may know in regard to the other questions, I feel it my duty to refrain from making 
this communication lengthier than it is already. I shall be most happy, however, to 
elucidate by verbal testimony any points upon which the Commission may want to be 
further informed, or to practically demonstrate or help in any trials which may be un- 
dertaken. 

Respectfully, 

A. T. HERRMANN, 
Surveyor and Civil Engineer. 

San Jose, October 8, 1879. 

When giving some testimony before the honorable Commission in San Francisco I 
was requested to add to my written answer my estimate in dollars and cents for pay 
per mile of such work as I had described. I think it ought to be : 

Line survey per mile : In plain, $8 ; in rolling country, $10 ; in mountains with scat- 
tered timber, $15 ; in mountains with dense timber, $20. 

And for topographical surveys and exploration per section: In plain, $5 ; in rolling 
country, $10 ; in mountains with scattered timber, $20 ; in mountains with dense tim- 
ber, $30. 

A percentage of 25 to 30 per cent, to be added for township and standard lines re- 
spectively, and from 10 to 15 per cent, for subdivisions, if the surveys be pushed to the 
highest parts of the Sierra or kindred mountain ranges. 

A. T. HERRMANN. 

San Jose, October 14, 1879. 



Testimony of Harry C. Hill, San Francisco, Gal., relative to mining latvs. 

Salt Lake City, Utah, 

September 19, 1879. 
Sir : At your request I beg leave herewith to submit to your Commission my views 
upon some of the points or questions propounded in your circular under the head of 

LODE CLAIMS. 

At the close of the war I was sent by a New York company to Chihuahua, in old 
Mexico, as financial agent of a mining company. Shortly after my arrival at the mines 
I was promoted to the sux>erintendency. Since that time I have been actively engaged 
in mining, either as superintendent in charge of property or as mining expert, to ex- 
amine and report upon mines. I am tolerably familiar with mines and mining in 
Dakota, Colorado, Utah, Nevada, California, and in old Mexico, and in mines of gold, 
silver, quicksilver, and coal. 

To point out existing defects in the laws is a much easier task than to suggest prac- 
tical remedies for such defects. 

I believe " all mining district laws, customs, and records could advantageously be 
abolished as to future locations, and iho initiation of record title should be placed 
exclusively with the United States land officers." It seems absurd to allow a few men, 
always interested and often incompetent, to make laws for a district that virtually set 
aside the laws of Congress ; and in very many cases these district laws have proved 
the greatest drawbacks to mining enterprise. I may cite the case of Montgomery dis- 
trict, Park County, Colorado, where, in a limestone country with " bedded veins," the 
width of a claim was made twenty-five feet on each side of the discovery. On Mount 
Bross, in this district, mining at 14,000 feet above sea level was an expensive experi- 
ment, and no one was willing to risk capital on 50 feet of ground with such surround- 
ings. The result was, that prospectors and locators were forced to sell their narrow 



PUBLIC LANDS. 75 

claims at low figures to capitalists, who were equally forced to purchase an indefinite 
number of such strips before they were justified in going to the expense of making 
roads, and erecting buildings necessary for the shelter of the men working at that 
altitude. So that in this one case of so many that could be cited the district law 
proved the worst possible law for both parties that could have been devised. * 

I believe the present size of what miners call a " Congress claim," 600 feet by 1,500 
feet, cannot well be improved upon. If a ledge is found to be wider than the 600 feet, 
allow other locators to have an opportunity upon it ; 600 feet in width of ore ought to 
satisfy the most avaricious. 

The present system of record is very defective. Mining titles are disturbed and ex- 
pensive litigation is continually occurring through the fraudulent manipulation of 
these records. District recorders are not always either competent or honest, and some- 
times lack both of these qualifications. District records are many times found the 
most useful engines for the destructiou of titles. So many districts are organized and 
records made that are in a short time forgotten that district recorders are careless 
about the preservation of the first records, and when these records come to have value 
it is often found impossible to cure the carelessness with which these records were 
made and handled. In Deadwood, Dak., the first recorder appears to have been an 
old hunter who was too lazy to prospect, and was the only man in the district who 
icould take any trouble about recording the few claims that were first discovered. 

With the history of the Leadville records the Commission is probably familiar. The.v 
were passed from one man to another without authority, sometimes lost entirely, and 
at length a saloon was set on tire for the express purpose of destroying them. 

The public land office is the proper place for records of public land, whether agri- 
cultural or mineral, and the United States officers are the proper persons to make the 
records, and these same officers should have the power to adjust all controversies con- 
cerning mineral lands prior to the issue of patent. Some means should be provided 
for the appointment of deputy registers, at least in mineral districts at an inconve- 
nient distance from the United States land offices. 

I believe that the surveyor-general should be required to survey and map mineral 
districts as soon as possible after their organization, and all locations should be dis- 
tinctly marked upon the map, a copy of which should be kept in the local office, and 
the register or his deputy should be required to refuse to record locations that inter- 
fered with locations already made. The present official practice of filing surveys of 
lode claims which overlap on the surface should be changed, and surf ace-ground prop- 
erly recorded and designated should not, until forfeited for non-compliance with the 
law, be subject to other location or record. I believe every possible protection and en- 
couragement should be given to the original locator, but this same locator should be 
made conform to the laws enacted for his protection by the Congress of the United 
States, and should not be allowed to make laws to suit his own ideas of the case, and 
this renders the amendment of existing United States laws an absolute necessity. 

I would clothe the recording officer with discretionary power sufficient to prevent 
locations that bore evidence of fraud. He should refuse locations unless the locators 
so fully described their claim as to make it possible to describe it upon the map already 
referred to. He should insist upon ore or mineral " in place" upon the claim being so 
described by posts or monuments that other locators could have no reasonable excuse 
for overlapping his location or interfering with it. He (the locator) should be required 
to do a reasonable amount of work upon the claim, and. within a reasonable amount 
of time should be required to pay the government price of $5 per acre, and upon such 
payment a patent should issue. No more expense should be inflicted upon the mineral 
locator than upon the man who takes up agricultural land, save in the first cost of the 
land, and patents should issue in the order of application, providing the law had been 
complied with, and not, as is now the case, with such marked favoritism as to lead one 
to doubt the integrity of the officials in charge of this department. 

In the American Fork district in this Territory a patent was applied for upon the 
Silver Dipper lode. No protest was made. The law appears to have been complied 
with in the letter as well as in the spirit. No objection of any kind was made to the 
applisation, and three years elapsed before the patent was received. 

In the West Mountain district of this same Territory a patent was asked upon the 
Stewart mine. After the papers had gone to Washington and had been returned on 
account of some irregularity, an alleged fraud in the transfer of title from the original 
locators was discovered, and affidavits were sent to the Land Office in Washington, 
asking that the patent be withheld pending an investigation. 

No investigation appears to have been made, and a patent was issued within a few 
days after the arrival of one of the parties in interest at the national capital, leaving 
one to believe that the mining laws need amendment in the administration as well as. 
the text. 

I believe that mines or mining claims should be confined by vertical lines. I am 
aware that this idea will meet with great opposition from various quarters, and will 
in some cases work hardship to locators ; but once a record is properly made litigation 



76 PUBLIC LANDS. 

'will practically cease, and the opportunity for fraudulent manipulation of mining titles 
wilLno longer exist in great measure. 

There are so many different kinds of mineral deposits that it is practically impossi- 
ble to frame a general law that will not work some hardship to some few cases. A 
classification of veins or deposits, and a law or laws to fit such classification, has been 
suggested and freely discussed by mining men. I do not believe the plan a practica- 
ble one ; the laws will necessarily be cumbersome and difficult of interpretation, and 
the opportunities for fraud in the classification very many. 

By allowing the locator to lay the six hundred feet as he thinks best, not as now 
compelling equal distance on either side of the discovery, in most cases — I believe in 
87 per cent, of locations — sufficient ground will be covered to either make the locator 
rich or hopelessly bankrupt him if he persists in working. 

In the Brodie district of California the veins are small ones, inclosed within hard 
walls, and very irregular in both strike and pitch ; yet in no case that I can remember 
— and I am familiar with most of the mines in the district — would the irregularity of 
the vein have taken it out of the side lines in a length of 1,500 feet along the strike. 

Again, I do not think the side lines should of necessity be right lines ; allow them to 
curve or follow the irregularity of the strike. The fact that the lines, both side and 
end, when once described, are to definitely bound the claim, both on the surface and 
in going down, will make locators more careful in making their locations, something 
that at this time under the existing laws they are particularly careless about. 

At present the constant fear of every miner and investor in mines is that at some 
time he will be " traced out." He never feels secure ; and to the dishonest manipulator 
nothing affords so many chances for profitable fraud as this same scheme of " tracing 
out " a valuable claim. I know of many purchases of valueless claims having been 
made for no other reason than they offer a chance to u trace out" some other claim. 

Leadville, Col., Deadwood, Dak., many places in Utah, Nevada, and California, are 
now cursed and progress impeded by expensive litigation that would all have been 
impossible had the claims been located with vertical side lines. 

Expensive litigation is not the worst feature in the cases, although for examples of 
the cost of maintaining title I may point to the suits between the Raymond and Ely 
and the Meadow Valley, in Pioche, and those between the Eureka Consolidated and. 
Richmond, in Eureka, as fine examples. 

The shameless frauds of various kinds that are continually practiced in mining cases 
have brought discredit upon the entire business. In Deadw r ood a judge from the bench 
denounced the verdict of a jury in a mining case, where murder had been committed, 
as a disgrace to the law and insult to the court, and, bidding the clerk take the names 
of the jurors, ordered that none of them should, ever be allowed to sit on a jury again 
during his administration. Such judges are rarely to be met with. The venality of 
some of the judges in Utah and some that were in Nevada when that State was under 
territorial government has passed into a proverb. 

Men are pointed out in California and Nevada that have got rich by buying and sell- 
ing juries, and in all mining camps certain men exist that are known as "affidavit 
men " — men who are ready to swear to anything for a consideration. 

Of course no law will make men honest, but the major part of all perjury is com- 
mitted in swearing to the "apex" of a lode; and by making side lines vertical lines 
you at one stroke take away all importance from and all value to this disputed point 
called " apex," which is the alpha and omega of nine mining suits out of every 
ten. 

I believe every mining country should have a federal officer, with powers similar to 
those of the gold commissioners of the British colonies, selected if possible from the 
United States Army, by which selection men both competent and honest could be ob- 
tained for an office that would be a very responsible one as well as a most useful one. 
I make no apology for the style of this article, which I have written while en route 
from one mining camp to another. I have had no time to write cither more briefly or 
more elegantly, but in the midst of other duties have hastily set down my ideas upon 
the subject, in the faint hope that in some way I may be instrumental in aiding your 
Commission in the encouragement of legitimate mining enterprise and in the suppres- 
sion of fraud. 

Very respectfully, 

HARRY C. HILL, 

Sa?i Francisco. Cal. 

Captain C. E. Dutton, 

/Secretary Public Land Commission. 



PUBLIC LANDS. 77 

Testimony of William Holden, Mendocino, Cal. 

The questions to which the following answers are given, will be found on sheet facing 
page 1. 

Answers to questions submitted by the Public Land Commission. 

1. My name is William Holden ; reside at Ukiah, Mendocino, California. 

2. Eight years. 

3. No, not for myself. 

4. Practice as a lawyer. 

5. In an uncontested case, sis months. In a contested case, from one to three years. 

6. The right to pre-empt but 160 acres in this country, where land is largely fit only 
for grazing, and that small amount being of no use or of small value as a grazing farm, 
parties wishing to procure a grazing farm are compelled to procure others to iDre-empt 
so they can buy them out and thus get grazing land sufficient for their purposes ; the 
remedy would be to permit them to pre-empt 640 acres of grazing land. 

7. This county is composed of small valleys, chimere mountains, mountains or hills 
covered with redwood and other timber, and open rolling hills covered with wild 
grass and scattering timber. 

8. The character of the land could only be fixed by proof before the land office 
where parties purchase ; could not be done by geographical division. 

9. Would not advise any change. 

10. No other than permitting pre-emptors to take 640 grazing lands. 

AGRICULTURE. 

1. The climate is good ; rainfall from middle of November to 1st of April; little or 
no snowfall. 

2. Rainfall about 54 inches ; comes when most needed, as the ground is dried and 
parched when it comes. 

3. AH. 

7. Springs, Russian River, and many small streams that empty into the ocean might 
be used for that purpose. 

8. My knowledge is limited ; the fertility of the soil not injured ; crops can be raised 
at an altitude of 3,600 feet above the level of the ocean. 

9. There are no irrigating ditches in this county. I do not know. 

10. None, or but very little for irrigating purposes. 

11. None. 

12. Four-fifths. 

13. It is practicable ; 640 acres. 

14. Yes, to 640. 

15. Two and one-half acres. The rolling hills will produce more.grass than the 
level plains in San Joaquin and Sacramento Valleys. 

16. About 100. 

17. But few cattle. 

18. Increases with pasturing. 

19. But few cattle raisers. Can be safely confined, 

20. Would be improved if range not overstocked. 

21. Springs and creeks. 

22. Between three and four. 

23. It has. 

24. No. 

25. None, because they do not run together. 

26. Two hundred and fifty thousand sheep ; herds from 500 to 5,000. 
28. There is, in the old surveys. 

TIMBER. 

1. There is a large quantity of timber land in Mendocino County— redwood, fir, pine, 
oak, and burr chestnut. There is a large belt of redwood and fir timber running from 
Sonoma to Humboldt County, along the ocean on an average 25 miles wide. Along the 
streams putting into the ocean, which are large enough in high water to float logs to 
the mills at the mouth, most of the timber has been cut and made into lumber. 

2. Australian gum, if any. 

3. I would sell as now provided by law. 

4. I would classify as first, second, and third rate for timber purposes, and require 
proof as to class, when sold. 

5. Yes ; the sprouts putting out from the roots of the stump grow very rapidly. 

6. Forest firest originate from logging camps and hunters. Rewards for prosecuting 
to conviction of offenders might prevent it. 



78 PUBLIC LANDS. 

7. Large timber thefts are perpetrated. When taken for ties or lumber for sale, 
heavy penalties should be inflicted. For mining or agricultural purposes, no. There 
are large wastes and destruction of timber not used. 

. 9. I am of opinion that the laws would be more faithfully carried out if placed in 
the hands of local land officers. 

LODE CLAIMS. 

1. Have no or very little experience. 

PLACER CLAIMS. 

1. A very, very small proportion. Gold. 

WM. HOLDEN. 



Testimony of J. D. Hyde, register United States land office, Visalia, Tulare County, Cal. 

San Francisco, Cal., October 28, 1879. 

J. D. Hyde, register United States land office, Visalia, Cal. 

All fees for reporting evidence in land cases should be abolished. 

Eegisters should have a seal. 

Local land officers should have more authority. 

Fees for salaries should be abolished, and a salary fixed for registers and receivers. 

Experience of years is required to make efficient officers (United States land). 

I believe in the present system of rectangular surveys of the public land, with 
improvements. I believe in more permanent monuments for public surveys; we have 
a great deal of trouble with settlers who are unable to find the stakes and corners of 
the old surveys. 

Our district is agricultural. We have large districts of land now arid which can be 
eventually reclaimed by irrigation ; a large quantity of water is now wasted. There 
should be a national or State system of irrigation. 

There are large tracts of foot-hill lands only fit for grazing. 

I believe in the pastoral homestead of, say, 3,000 acres on arid tracts. 

There is very little timber land in our district — timber fit for building purposes ; 
what timber we have is on the high mountain-tops. It should be sold in tracts of not 
less than 160 acres ; from that to 840. The timber is now ravaged by fire ; fire destroys 
more than is used. The timber lands in private hands would be better cared for than 
in public control. 

Eegisters and receivers of districts should have charge of the timber lands. 

Local mining recorders should be abolished, and claims for mines should be filed 
with the United States local land offices for preservation of title, for prevention of 
litigation, and certainty of description. 

All mining controversies up to patent should be tried in the local district offices. 

Eegisters should have the right to subpoena witnesses in land matters and to per- 
petuate testimony. 

Local land officers (district) should have authority, as they take the testimony in 
and recommend cancellation of homesteads and D. S. pre-emption filings, to at once 
permit entry on the tracts by legal claimants, without waiting as now in some cases 
six months for cancellation from Washington. 

Patents now require at least a year from issuance, when everything is regular. This 
should be altered, and patents issue at once. 

Contested cases sometimes now hang up four or five years in the General Land 
Office at Washington. This should be radically changed. The local officers should 
decide many of the minor cases now sent up to Washington. 

Government should pay for rent and fuel of offices of district land officers. 



Testimony of E. O. F. Hastings, of San Francisco, Cal. 

E. O. F. Hastings, attorney-at-law, San Francisco, Cal., testified October 15, 1879, 
as follows: 

I havo lived on the coast twenty years and have had some experience of the country. 
I have been a cattle proprietor. I was register of the laud office at Marysville from 
1858 to 1862, and I was subsequently an attorney and land agent for the State, and 
resided in Washington from 1870 to 1875. 



PUBLIC LANDS. 79 

Question. Give us your opinion as to the timber-land question. — Answer. Well- 
from observation and experience I am satisfied (and concur with the other gentlemen) 
that some action should be taken for the preservation of the timber. The course that 
I would suggest from my experience in connection with this land would be that the 
timber land proper — the timber fit for sawing and producing lumber — as soon as it is 
found that there is a demand for it in any particular locality, should be surveyed by 
the government at once. There should be a special fund set apart for the survey of 
those lands, and the alternate sections (either the odd or even sections) should be 
offered at public sale at stated times, at a minimum price. The other sections not dis- 
posed of, as a matter of course, should be held intact for the future. 

By pursuing a course of that kind the wants of the country would be supplied and 
the country would not be denuded for timber. It would also be an inducement to 
persons owning the timber to see to it that waste was not committed on the sections 
not sold. It would be to their interest to do it. It would also be to their interest 
to prevent fires ana depredations of every kind; and besides that the government, 
if it thought proper, could have agents for the purpose of protecting the unsold lands. 
That is all I have to say on the timber question. 

Q. What have you to say about the arable lands ? — A. The lands you have reference 
to I presume are the lands that are entirely unfit for cultivation without irrigation. 
I think these lands should be sold direct by the government, but without any special 
reservation as to quantity, for the reason that we know from experience in the past 
(and we can only judge of the future by the past) that vast bodies of land are now 
lying in this State of that character which have been surveyed and not disposed of by the 
federal government. Settlers could have occupied them if the government had made 
it possible for them to take them up in sufficient quantities for purposes of irrigation 
and improvement. That has not been done. 

Then again we see that all kinds of maneuvering and trickery have been resorted 
to for the purpose of getting title of this land from the federal government. Per- 
sons were compelled to do that, for the reason that they could not buy them. It is a 
very grave question as to how long it will take to utilize these lands, even if you get 
water on them, and therefore I think the sooner they pass into the hands of the peo- 
ple the better. But the lands really susceptible to cultivation, and even the inferior 
lands that can only be utilized by the expenditure of large sums of money, I think 
should be held for the people — held sacred, and only to be taken up under pre-emption 
and homestead law. 

Q. You have had practical experience in the matter. Now, in your judgment, can 
the pre-emption and homestead laws be consolidated and simplified? — A. Yes, sir; I 
think they can. It is a matter which I have not given much thought to, but I am 
inclined to think it would be best to increase the amount of the homestead claim from 
160 to 320 acres. Of course that would be the maximum of land that a party could 
take under the homestead or any other law of Congress. I would repeal the pre- 
emption law. 

Q. What do you think of the pasturage lands ? — A. It is a notorious fact that the 
pasturage land, as distinct from the irrigable in California, is of such a character that 
in order to make it valuable and to enable persons to utilize it the land must be held 
in large tracts, larger than 160 acres, and in many instances 2,000 acres would be of 
but little value to a person for pasturage purposes. My views are that this land should 
be surveyed by the government as early as practicable ; that is as soon as the demands 
of the settlements of the country require it. Of course it would be nonsense for the 
government to go five hundred miles away from settlers and survey these lands, but 
as they are required they should be surveyed and proclaimed or offered at public sale, 
at a fixed rate, in tracts of not less than 1,000 or 2,000 acres, and those not sold should 
be subject to private entry. 

Q. At what rate? — A. That would be a matter for consideration. The government 
would have to determine that after the lands had been classified. I see no objection • 
to increasing the homestead privilege, and giving persons the privilege of taking up ** 
the land under the homestead act. It ought not to be less than a section — enough to 
make a homestead. 

Q. What would be the effect if this land were sold so that a man could obtain small 
quantities about streams and springs, so as to have the greatest number of water 
fronts ? What effect would that have on the monopoly of water ? — A. If it were prac- 
ticable to do so that would be wise ; but you take the foot-hills for instance, and there 
you may find one or two springs, and there might not be another spring or small 
stream for miles. It would be difficult to so apportion that land as to give parties 
access to the water. The only way that I could see that it could be done would be 
this : for the government to hold, in reserve the water (with a certain amount of land 
in conjunction with it), and not sell it at all, but leave it open to the people and the 
public, the whole community being allowed to take their stock there to water. I 
think that would prevent monopolizing the land. Monopolies in this hilly land, in 
many instances, has resulted from that fact. When I was register parties would come 



80 PUBLIC LANDS. 

in and pre-empt one hundred and sixty acres of land ; and when I asked them why 
they did not take more, they would say : we do not want more ; we want the water ; 
we buy this water, and we have the key to the whole country. That is the same way with 
the foot-hills— amangoesinand purchases the water, and that will give him thekeytothe 
whole country around. That is the way the lands have been absorbed and kept out of the 
market, and the people prevented from settling on them. People locate the water so as to 
control the laud. It would be well to make the greatest number of pasturage farms front 
on the water and extend back. If the land could be disposed of in that way it would 
be well; but it is hardly practicable to get at it in that way. I am still of the opinion 
that the government should hold the water and the land adjoining intact, and not 
dispose of it. In that way it would leave the whole matter open, and there would be 
no such thing as monopolizing the land. All persons could have access to the water. 
I can well suppose, for instance, that there was a spring in a region of country, and 
that for miles around it was a desert, but the government should hold the water and 
the land adjoining, and not dispose of it at all. For instance, the forty acres upon 
which the spring was located should be reserved, just as saline springs are reserved. 
In the foot-hills, where the streams extend but a short distance, it would be difficult 
to make a reservation with regard to the land, but if it was possible it would be just 
as well to do it. Where the streams extend only three or four miles, I would reserve 
that from sale. That would hold the water intact for the entire community. Then 
the settlers outside of that would regulate the right of way to suit themselves. No 
party or set of persons could monopolize the water. 

Q. Do you favor a State or national system of irrigation? — A. You have reference 
to the disposition and mode of appropriating the wcter by digging canals, &c. ? That 
is a very difficult question, and one that I have not thought about sufficiently to pass 
an intelligent opinion upon. If, under our system of government, we could adopt 
some national system of irrigation it would be well; it would be the true course to 
"be pursued, if it was practicable. 

Q. What do you think about the right to work mines in lands that you have dis- 
posed of as pasturage lands? — A. I think that when the government has made a sale 
of the surface that it should pass title to everything in the land, mineral or whatever 
could be found there. 

Q. Would miners be willing to agree to that ? — A. I do not know. I presume there 
would be considerable opposition to it, but if those lands have been determined not to 
he mineral and the government disposes of them, how would it be possible for it to 
make reservation in regard to the mineral ? If the government can do it for one year 
it can do it for fifty years. The government sets aside the sixteenth and thirty-sixth 
sections as school lands and recognizes the right of the State to them. I buy a section 
of that land, and twenty years from now I make a discovery of gold on it ; would it 
not be reasonable to suppose that I own that gold, and would it be reasonable to say 
that I should not have it? Or, some one else comes along and discovers the mineral 
upon it after it was sold to me. It would unsettle matters \ery much, indeed, to give 
the party making that discovery the title to the land or even to the mineral. 

Q. Would not the fact of any mining prospector having a right to go upon a man's 
land be a cloud upon the title to that man's property ? — A. Of course it would ; any- 
thing that interferes with the value of property certainly is a cloud upon the title to 
it, particularly where you cannot help yourself. I do not see that any special good 
results in making that reservation. If mineral is found upon a piece of land it will 
be worked. The general idea of preventing monopoly of mineral land or any kind of 
land is a myth. You cannot pass laws to prevent it which will ever reach it. This, 
of course, relates to mineral lands. With agricultural lands it is a different proposi- 
tion. There men want to make homes and they should be protected in their rights. 
Q. You have some knowledge of this strip of country which has been reserved for 
mineral purposes in the foot-hills, do you think it will be wise to restore that to settle- 
ment? — A. Yes ; I can give you my experience in reference to the reservation of this 
land. The first reservation that was made in the State (that is of federal land after 
it had been reserved by the United States as public land) was in 1858. Surveys had 
been made (I speak now of land of which I have knowledge) in the early days com- 
mencing with 1853-54. There was a large amount of surveying done following the 
line of the foot-hills and extending down into the valleys. Much of that land in the 
valleys and foot-hills were ascertained to be agricultural land, and was offered for sale. 
About the time these lands were offered for sale mineral was discovered upon 
them and placer mines were being worked. I could see that the government by mak- 
ing the sale of that land would sell land that it ought not to, and I communicated 
with the department and stated the facts. I immediately received instructions to 
take testimony as to the character of these lands, as to whether they were more val- 
uable for mineral than for agricultural purposes. Most of the proof was in favor of 
their being mineral land, and the land was withdrawn. I took the testimony, and a 
large amount of land was withdrawn from sale. The instructions and regulations 
were issued at that time. This land upon which I reported was in isolated tracts. 



PUBLIC LANDS. 81 

Subsequently the department issued a general order -withdrawing all these lands from 
sale and reserving them as mineral, and then provided thai, the persons who desired 
to take up the land should make proof that it was of more value for agricultural than 
for mineral purposes, and the consequence is that the land has been held in this con- 
dition ever since. 

Now, I think those lands which have been held for a long time, and upon which 
there are no mines, or upon which no mines have been worked, ought to be thrown 
open to pre-emption and homestead, and parties making the pre-emption and home- 
stead entry should not be required to make the non-mineral proof. That is my view 
in relation to these lands. 

Q. What do you think of the idea that where there is a cause for doubt as to the 
mineral character of the land the burden of proof should be upon the miner and not 
upon the agriculturist ? — A. That would be the most rational course to pursue. The 
rule is the other way now. 

Q. Would not that be practically inoperative ? — A. Well, I do not know. The pros- 
pector always precedes the agriculturist. In connection with the foot-hills in this 
State there would not be much danger of a person taking the lands upon which there 
is mineral, because they have been rooting upon these lands for the last twenty years, 
and if there was anything there it would have been found long ago. Those sections 
up along the foot-hills that years ago were being mined have been worked out, and 
there is nothing there now. When you go higher up into the mountains, of course it 
is a different thing. 

Q. From your knowledge of the gold land in that section what has been done with 
it; is it more valuable for agricultural than for mining purposes? — A. As to the por- 
tion of this land that extends down through the valleys from ten to twenty-five miles 
these lands have been so thoroughly prospected that they really cannot be so very 
valuable for mining purposes, and therefore they would be more valuable for agri- 
culture, but when you get up into the mountains, where these gravel and hydraulic 
claims come in, that is a different proposition. 

Hydraulic mining extends south, going a considerable distance, but the mines have 
not been developed, for the reason that they have not had a supply of water. For 
instance, up here in Tahama County there has been a discovery of gravel diggings' 
where they had not supposed there was any at all. It has been a creek, called Deer 
Creek. 



Statement and suggestions by Alfred James, register, Los Angeles land district, and W. H. 

JSwivay, deputy surveyor. 

Before the United States Land Commission, Los Angeles, October 17, 1879. 

Alfred J a:\ies examined. 

I have been in the land service of the United States now more than seven years as 
register of the Los Angeles land district. 

The general character of the unappropriated land in this district is hilly and mount-, 
ainous, suitable only for grazing, and desert lands. I refer now, of course, to the 
public lands of the United States. By "desert lands" I mean land destitute of 
grass and timber. It is not all totally unfit for cultivation under fair conditions, for 
some' of the desert lands would be good land with water. I presume the proportiona 
of desert %nd pasture land remaining in this district would be one-third desert and 
two-thirds pasture lands, and that two-thirds of all the lands are desert and pasture 
lands, compared with the whole area of land in this district. I mean public lands— ' 
that is, exclusive of private grants and lands disposed of. 

All the lands in this district are unoffered lands, to be disposed of under the home- 
stead and pre-emption laws. These laws are wholly inapplicable to the disposition of 
these lands, because 160 acres of land or 320 acres, the limit which can be acquired 
under the pre-emption aud homestead laws, combined would be wholly insufficient for 
any man — would not support one man. i 

There is a great diversity in the character of the pasture lands, and upon an aver- 
age it would require of the wild pasture land perhaps ten acres to support or sustain 
one head of beef. But this would exclude the desert land. Of the same pasture' 
land it would take five acres or more to sustain one head of sheep. Sheep waste much,- 
more than cattle by tramping over the ground. 

In some places there is good grazing for sheep and cattle entirely to the summit of 
the mountains. They range to the summits. In the San Jacinto and Cuyamaca 
Mountains there are good pasture lands upon the summit. 

This district does not extend back to the Sierras; but I know something regarding 
the timber lands in the Sierras, for I lived there several years. In the Sierra Nevada 
where timber grows grass is very seldom found. Grass in the mountain ranges of 

6LC 



82 PUBLIC LANDS. 

California is mostly confined to the Coast Kange and the foot-hills. On the heavily 
timbered mountains there is no grass to speak of. 

Of the Yosemite Mountains I do not offer an opinion ; I don't know anything about 
them. I have passed over the Sierra Nevada by several different routes and have 
lived there for several years, but I know of no locality where there is any grass in the 
timber to amount to anything, except in some of the valleys, high up on the borders 
of Lake Tahoe, and in the tamarack region. The grass line runs from 5,000 to 7,000 
feet, and it is frequently in considerable quantities, and is cut for hay. Hope Valley 
has an elevation of 7,000 feet and is covered with grass. Sierra Valley is a good grass 
and stock country and is very elevated ; it has an elevation of about 6,000 feet. 

Grazing lands of this part of California are simply held by mere occupation by sheep- 
herders. Much is occupied by foreigners in this portion of California. There are large 
tracts of land both in this and San Diego County which is so occupied by sheep-herders. 
I have known those men to start in business as herders for others in the sheep busi- 
ness and in a very short time gather up a flock of theirown ; and in some instances 
they become very wealthy, owning several thousand head, grazing them upon the 
public land, frequently to the exclusion of men who would be glad to purchase these 
lands if they could do so in sufficient quantities to maintain the business of stock- 
raising. Those herders are nomadic in their character. They drive their flocks over 
I don't know how much territory. I have heard considerable complaint from stock 
men in regard to those nomadic sheep-raisers from the fact that they frequently drive 
on the ranges occupied by Other persons, and in some instances gather up stock belong- 
ing to such persons and drive them off" in their own flocks. I might state, however, 
further regarding these sheep men that when feed is very scarce they often rent land 
from private-grant owners for a season, but this is always when they are unable to 
find sufficient feed on the public lands to maintain their flocks. It is their custom, as 
soon as grass and water fails, to move off. In moving they are protected by State 
laws, yet the moving of their stock is often a serious annoyance, and litigation very 
frequently arises out of the damages done in moving stock from place to place. They 
frequently make unnecessary delays, and so depredate upon private grants in order to 
feed their sheep. Besides this, moving has often the effect of evading the tax-laws to 
some extent, and in every instance more or less difficulty is experienced in collecting 
the revenues. They sometimes pass from one county to another and evade the taxes 
altogether. 

I think the value of the pasture lands has deteriorated to a considerable extent, in 
my own experience here. This I attribute to the excessive grazing or overstocking 
and eating up of the seed, as the grasses grow entirely from the seed ; all the valuable 
grasses foereiare produced in this way. In some places the pastures in this way be- 
come exhausted. Where there is no overstocking 1 there is always enough to seed the 
pastures. The lands in this district have all been injured in this way ; that is, the 
wild p^stur^ glands. The water facilities are quite limited in California. Wherever 
there is water, such as a spring or rivulet or any valuable water supply, the land has 
been occupied. 

Water can be obtained on nearly all these, lands by the expenditure of capital, 
either by surface wells or artesian water ; artesian water can be obtained nearly every- 
where in California. There have been many successful experiments in obtaining ar- 
tesian water, none of very great magnitude; but, a great many artesian wells have 
been sunk upon mesa lands, and water obtained at a depth of from 200 to 500 feet. 
In the San Bernardino Valley artesian water lmiy be obtained at from 30 to 60 feet, in 
an abundant flow. But those wandering herders have not yet been reduced to the 
necessity of sinking wells for water, from the fact that in tho foot-hills there are yet 
some springs from wliich they can obtain water. They depend upon this natural sup- 
ply ; but the failure of water sometimes necessitates their moving. 

As a means of approximating the size of their bands of sheep, I can only state that 
wool-growing is one of the principal industries of this State. 

Collisions sometimes occur between cattle and sheep men. Cattle and sheep will 
not graze profitably upon the same lands. Sheep pasturage invariably deteriorates 
and destroys the quality of the pastures, and renders them totally unfit for cattle. I 
tnrnk, though, as a matter of fact, about all our cattle raisers have private ranches. 
Very few are dependent upon the uncertainty of the public lands for their grazing, 
while these aro used very largely for sheep. Sheep-grazing would necessarily drive 
out cattle. 

I am of the opinion that the public lands are being rendered, by this unrestricted 
herding of sheep over them, less and less valuable every year. Eventually it will be 
difficult for the government, under the present land system, to dispose of these lands 
at an;/ price. The parties occupying have acquired no title, and yet they are in the 
occupation to the exclusion of all others, and their occupation is destroying the value 
of the lands so that it will not be disposed of. 

There is no way under the present law by which it can be acquired in sufiioient 
quantity to enable a man to make a living upon it. It can be acquired by homestead 

i a 



PUBLIC LANDS. 83 

and pre-emption in quantities of 160 acres, and then only by cultivating the land, 
which is an impossibility ; and if the land is in the occupation of these nomadic sheep 
men it is not subject even to those laws for acquiring title, under the ruling of the 
Land Department. 

In my opinion this character of land should be sold outright by the government, 
perhaps in unlimited quantities by private entry. I am in doubt about the propriety 
or feasibility of limiting the quantity which should be allowed to any one man or per- 
son, as an evasion of the law in case of limitation would be almost certain to follow 
as the result. One thousand acres of our average pasture land in this district would 
be insufficient for ordinary stock-raising by one man. 

Under the present system of legislation, as well by the United States as by this State, 
sales of lands here are supposed to be confined to 160 acres, and the intention is to 
avoid the existence of monopoly. But the claimant can take up a pre-emption, then 
homestead, then a quarter section under the timber act, and as much homestead scrip 
as he can buy and pay for. He can in this way, if he is rich enough, get an unlimited 
quantity of land, so that the restrictions against monopoly are a dead letter ; but it 
would be better to provide an easier way to attain this end, and a way that would 
avail to prevent perjury and fraud. Most people think that by acquiring land under 
the forms of the law they are not committing any fraud or perjury. Besides, it is a 
fact that there are no more lands in this district that are worth entering under the 
homestead or pre-emption laws. 

A law to dispose of this class of land should be applicable to the whole country. I 
think an excellent plan of disposition would be to make the ownership — the actual 
possession at the time — of a herd of cattle or sheep the qualification of every pur- 
chaser of large tracts of public land. 

Again, if you should limit the quantity of land there would be less inducement to 
a man to spend large sums of money in the work of developing artesian water. 

As to price, the graduation law or system should, I think, prevail. Under that plan 
the better part of the land would be brought up and the remainder soon be sold. In 
fact all the land in this district worth $1.25 an acre has already been sold. As I have 
stated, the value of the land is decreasing by reason of overstocking. If the govern- 
ment is ever to dispose of these lands it will have to be done soon or it will not find a 
purchaser at four bits an acre, by reason of this deterioration. 

Perhaps at this time 50 to 60 per cent, of the pre-emption and homestead entries in 
this district are perfected. Perhaps of those perfected one- half were entered legiti- 
mately under the law for personal purposes, and I see no necessity of maintaining the 
homestead law and the pre-emption law at the same time. The homestead law is de- 
fective as it stands. I know of a great many advantages which would accrue by 
material modifications. 

The law itself (section 2297, Revised Statutes) provides that the question of aban- 
donment shall be determined by the register and the receiver; but under the rules of 
the Department it is required that the register and receiver shall determine the ques- 
tion of abandonment primarily and send the report, with the evidence and their joint 
opinion, to the Commissioner of the General Land Office for his action, which, when 
had, is transmitted back to the local office — taking a period of from six months to a 
year— when the case is held for sixty days subject to appeal to the Secretary of the 
Interior, when, if no appeal is taken, the fact must be reported back to the depart- 
ment and a cancellation is ordered, and the local office is then notified from tho Gen- 
eral Land Office that the cancellation has been entered, whereupon the land is at 
length subject to entry for the first time — requiring in all a period ranging from one 
to three years. 

To determine a question of abandonment there should be no further fact than the 
written abandonment and the surrender of the duplicate receipt by the party claim- 
ing in homestead cases, and the land so abandoned should be subject to immediate 
filing and entry. 

I think as a general thing that perhaps half the persons applying for the cancella- 
tion of homesteads lose the benefits. The trouble is that under the present rulings of 
the department the person securing the cancellation of a homestead has no preference 
over any other person, and it is as subject to be entered by any other person as by 
such person — by the first man that applies — and the expense may have been very con- 
siderable to the party who has applied for cancellation. He ought to have the pref- 
erence. 

The party living nearest the land office has always the best opportunity ; and the 
person making the application and spending his means is liable to lose his opportu- 
nity. I have known of cases where parties have received telegraphic communications 
from Washington of the cancellation of homesteads, and in such cases I have experi- 
enced some considerable annoyance and trouble. In such case the local land office is 
blamed and suspected by the pjarty injured. I think it would be generous to let the 
homestead go upon record, where affidavit has been filed to the satisfaction of the local 
officers that an abandonment has been made; to authorize the local officers to receive 



84 PUBLIC LANDS. 

any application and act finally in the premises. The circumlocution now required to 
effect the cancellation of an abandoned homestead deters in many instances the per- 
son applying therefor from ever acquiring title to these lands. 

The timber-culture act is of no material benefit in this district. Lands are usually 
taken up under this law for the purpose of holding the land beyond the reach of any 
other person. A person can hold those lands for one year without being subject to 
proceedings for abandonment at all, the requirements of the law for the first year being 
nominal. Then to clear the record of a timber-culture entry would require three years' 
time and a very considerable expense. It amounts to occupation without rent for an 
average term of five years. It might be safe to say that the land might be held with- 
out rent and to the detriment of all others for five years. 

Twenty-nine entries have been made under the timber-culture act in this district, 
and none perfected. I know of no case where they have undertaken to comply with 
the law. There may be such instances, but none has come to my knowledge, and it is 
my opinion that none of the timber-culture entries upon the records of this district 
will ever be perfected. 

About the desert-land law my opinion, so far as its application to Southern Califor- 
nia is concerned, is that it is one of the best laws ever passed by Congress in regard to 
the public lands ; because there is a large area of land, known as desert lands, which 
without water is wholly and totally valueless. The law, however, is in my opinion 
defective in that the quantity of land to be entered by any one should not be limited, 
for the reason that it requires the expenditure of very large capital in order to reclaim 
the land and render it fit for cultivation. The law, so far, has proved a dead letter in 
this district, although large sums of money have been expended under its provisions. 
The regulations of the department in regard to the proof required to establish a recla- 
mation of desert land are so onerous as to render it impossible for a person to reclaim 
a piece of land under them. They require a person to put water upon the lands. It is 
required that the water be carried upon the land not only sufficient to raise crops, but 
that crops be produced by the introduction of water. The proof seems to contemplate 
that water should be carried over the whole of the lands, which is impossible in nearly 
every instance on account of the configuration of the land. Even the dimensions of 
the canals are required to be established by proof. I don't think the department 
should require that water should be conducted upon the entire tract before title should 
pass to him. 

There ought to be some discrimination made in regard to the requirements of reclama- 
tion. For instance, a man may take up a piece of desert land and go to great expense 
to bring water upon it, requiring the land for vineyard purposes and for fruit-grow- 
ing, in which case it needs a comparatively limited quantity of water, compared with 
what would be required to reclaim the land for the purpose of producing grasses for 
pasturage, as alfalfa, or for vegetable-raising, one-half the quantity of water required 
for raising vegetables or for alfalfa would be sufficient for the purposes of raising trees 
or vines, while the regulations of the department seem to make no distinction. 

The gist of the law is, or rather ought to be, the reclamation of the land, and not the 
question as to who reclaims. 

From the fact that the desert lands of California are valueless without reclamation 
the man who spends his money and time in an uncertain speculation of reclaiming 
such lands should be rather patronized by the government than otherwise. 

Much of the land in San Bernardino County is desert land, and some tracts here and 
in other counties, notably in San Diego Couuty, as also in Ventura and nearly all of 
Kern County which falls in this district. All of Kern outside this district is desert 
land. 

In this connection I will say that it would be impossible to reclaim, even under the 
most liberal legislation, a very great percentage of this land, for the want of water. 
Only a small percentage of it ever can be reclaimed. 

If the law was more liberal in its terms and provisions, parties might be induced to 
spend some capital in sinking artesian wells, and by that means much of the land 
might eventually be reclaimed ; but, as the law now stands, capitalists are prohibited 
from undertaking such enterprises. 

Timber lands in this district are very limited. There is a very limited quantity of 
timber which could be manufactured into lumber* situated in the San Jaciuto and the 
San Gabriel or Cahon Mountains, inaccessible without the expenditure of large capital 
for the building of roads. As this timber is on the northern slope ol the mountains, 
it is inaccessible except by building roads, as it must be brought over the summit. 
This would render lluming impracticable. The timber is not of the better class, how- 
ever, I think. It is principally pine and fir. The quantity of good sugar-pine is verj 
limited. 

There has been no title from the United States to these lands, for the reason that 
title can be acquired only by homestead or pre-emption or the timber act, which is 
inapplicable to that class of timber land. The trouble is that a man cannot get on 
these lands without an expenditure of $20,000 or P0,000, and then could get only 360 



PUBLIC LANDS. 85 

acres. The timber has not been appropriated, nor is the timber here adapted to build- 
ing purposes. 

At San Bernardino the timber is obtained from the mountains, and some of that 
timber was appropriated under indemnity selections. One great mistake is that all 
the wood lands have been recorded by the department as timber lands, and parties 
have been prosecuted for cutting timber only fit for fuel for domestic purposes ; and 
this notwithstanding that the only source from which the population of the com- 
munities in this part of the county have been able to obtain wood for domestic pur- 
poses, for fuel, is from the canons and the mountains and isolated spots of scrub-oak 
and other classes of tinfber growth upon the public lands. 

If the government would provide any means by which the title could be acquired 
to this class of land, such as is yet valuable for the wood growing thereon, it would be 
readily purchased. But there being no means of acquiring title, and the necessity 
continually existing for fuel for domestic purposes, these lands in a few years will be 
divested of timber in spite of the efforts of the government to the contrary, and thereby 
rendered wholly valueless. 

The government might receive no inconsiderable amount of money for these lands, 
but a very great proportion has already been stripped of wood, and can never be sold 
for any price. 

It would be one of the most difficult things possible to cover this case by general 
legislation, from the fact that the timber is found growing in isolated parcels in the 
mountains and canons, being in nearly every instance inaccessible without the con- 
struction of roads at great cost, and containing no land fit for agricultural purposes 
whatever. It would be impossible to sell this land out in regular subdivisions as 
under the present system. They could be sold only in parcels under special survey, 
as placer claims are now sold. What I have said applies to every portion of Southern 
California. 

The better plan would be to sell the timber, reserving the land, so that the govern- 
ment would then be enabled to reserve the new timber, if any such there might be ; 
and if the thing were possible, in such case there ought to be some legislation provid- 
ing against waste. 

The wood lands have been largely damaged by fires, and these fires have often oc- 
curred from the negligence of hunters and sometimes of mining prospectors who care- 
lessly set fire to the timber. 

I will add to what I have said about the homestead and pre-emption laws. The 
law requiring the publication of notice in contested cases is a useless larw and should 
be repealed. It imposes an additional expense of from $5 to $10 to no purpose what- 
ever, for the reason that when the records show an adverse claim, personal service is 
necessary, notwithstanding the requirements of publication ; and also the law re- 
quiring the publication of notice of final proof in pre-emption and homestead cases is 
entirely useless and adds to the expense and causes unnecessary delay in the entry of 
land. The law is cumbersome and difficult of execution from the fact that it often 
occurs that when publication is had the witnesses named in the publication at the 
expiration of the time set for proving up cannot be had, and even when they can be 
had there is still in the way of closing up the case many difficulties and hundreds of 
perplexities to the local officers. It is a cumbersome, useless, and unnecessary law in 
every respect, and I have never been able to see the first particle of public good from 
that law. 

In general terms, again, I don't believe that the public is benefited by taking tes- 
timony other than by the register and receiver, for various reasons, and among others 
that the testimony so taken is very seldom satisfactory and in nearly every instance 
is incomplete and leads to much correspondence and delay, compelling the local offices 
to keep proofs open for a greater or less time after the proof is taken. In many in- 
stances, if not generally, it costs more than to come before the local offices. Often the 
testimony has to be returned for correction, and entails unnecessary labor upon the 
government. We have found in the experience of this office since the rule went into 
effect that our labors have been greatly increased. It would be a wise regulation of 
law to empower the register and receiver to visit remote localities to take proofs, and 
it would incur no additional expense upon the government. It would also facilitate 
business if the register and receiver were authorized to issue subpoenas and to compel 
the attendance of witnesses in contested cases. Under the State laws, or by calling 
in their aid, we are in some measure empowered to bring in witnesses, but it would be 
much better if the authority were direct. 

From my experience with them I should also recommend that the local mining regu- 
lations of mining districts be abolished, because they are so easily evaded and so sel- 
dom complied with. The mining records under the local regulations are copied in a 
very loose and unsatisfactory manner. Mining recorders are generally irresponsible 
persons, not under bonds, and are easily used for the purpose by those that wish to 
evade the law. Mining districts are irregularly organized. There is no established rule 
as to the number of persons necessary to organize a district. It may be by three per- 



bb PUBLIC LANDS. 

soup, and I have known districts organized by two miners at a miners' meeting of 
themselves — the meeting called by themselves upon notice sent to each, other ; one 
presides and the other is secretary. There is no evidence needed as to whether they 
are miners or whether they are citizens ; all this has to be assumed. 

Having elected themselves x>resident and secretary they pass a code of laws to govern 
the district, and pass such laws as will subserve their own interests, and proceed to 
record the claims they cannot hold themselves by " dummies." 

Some of these districts are nearly as large as the State of Rhode Island, often as 
large as a whole township. Some may be comparatively small. 

It often occurs that a mining recorder is elected, makes a few records, abandons the 
district and takes the records with him. 

The boundaries are designated without) survey, often by illiterate men, and so very 
frequently overlap boundaries of other districts. It also occurs that a second mining 
district is organized, and the old laws repealed and new ones enacted. 

Where a mining claim is taken up under local laws and regulations it frequently occurs 
that, in order to avoid the work necessary to comply with that law, about the time the 
year would expire the claim is simply relocated by the same parties. 

Under these laws the iirst act is to stake off the lode and stick up notices, which are 
often vague and very indefinite in their terms, being written by illiterate persons. The 
second step is to have it recorded. 

There is no restriction upon the recorder to regulate these notices or records. He is 
not required to go upon the ground generally. There is no security against the altera- 
tion and destruction of these records. The personal integrity of the recorder is all. 
These records are the foundation and inception step to perfect a government claim. 
Under the regulations of the department the local registers are required to certify to 
the entries from his records, and, having no seal, he is required to certify before some 
person having an official seal. No other certificate of its genuineness is required. 
These entries are almost invariably very vague and indefinite. 

In many of the mining districts recently formed the laws of the United States in 
regard to the location of mining claims have been established as the laws of the dis- 
trict, showing that the United States laws are more satisfactory than any local laws 
that the miners have made. 

In place of these local laws I should suggest a general law of Congress. I should 
require the notice to be filed in the local land office, the same as a declaratory statement 
is filed for agricultural land. 

It would bfe well to have the locations made by official surveys, if it could be done 
without duplicating the survey and causing the expense of another survey before the 
issuance of a patent. There would not be any necessity for a further survey. The only 
objection to this would be the expense of locating the claim. But, in answer to this, it 
would prevent people from locating in bad faith, and from incumbering the districts 
with fraudulent claims, which have become very common. 

Two-thirds of the claims now held in this district, with which I am acquainted, are 
held without doing the necessary work required by law, merely for purposes of specu- 
lation. 

I should further limit the time within which parties filing should come in and pur- 
chase from the government after filing ; that there ought, first, to be time— say, two 
years — given for development. I think that the expenditure of money should be more 
satifactory than the performance of acts to constitute the proofs. 

I think, also, that the same rule would apply with advantage to government lands, 
and I think all controversies between parties in those cases should be settled in the 
local land offices, and it would save half or two-thirds of the litigation. 

As between the square or dip location, I should favor the dip location. In deep 
nrning the square would fail in many cases. In deep mining, under the square loca- 
tion, the lode would often extend beyond the limits of the claim. Fifteen hundred 
feet would be sufficient to cover the dip in most cases, perhaps, but not in all. In the 
Couistock Mine the dip covers 2,900 feet. For practical purposes, generally under the 
square location 1,500 feet would be sufficient. 

By a law designating the initiatory steps to be taken and securing the title to mines 
the government would derive a considerable revenue, from the moneys of which it is 
now deprived without any detriment to the miners themselves. This would throw 
the mines into the hands of legitimate, honit-Julc operators. I have known of many 
instances where companies have held claims in districts which they never saw and 
without complying with the laws for yeans, simply by procuring certificates that work 
had been done and by relocating claims. 

I should not allow the same .parties who have forfeited their claims by abandon- 
ment to rerecord them. Yet I don't think thai it would be well to restrict miners to 
one, loci! lion as in pre-empting land, because the business is one of the most uncertain 
pursuits. If a man devotes himself to the business of mining and risks all upon one 
mine which is undeveloped, he is resting his efforts upon a very frail claim. It is true 
thai miners are migratory, going from mine to mine in pursuit of something better, 
but still I think it would not be well to confine one to one claim. 



PUBLIC LANDS. 87 

If the law should compel one to initiate his claim by having a survey made, the cost 
would confine them to single claims with more tenacity and do more, perhaps, for 
their development. But if one claim prove unsatisfactory, I think there should not 
be a law that would compel him to quit the business. 

In matters of controversy between mineral and agricultural claimants, if the land 
is returned as mineral lands the burden of proof should fall upon the claimant claim- 
ing it as agricultural. 

We have had whole township plats withdrawn here simply upon the affidavits of 
persons interested in mining — plats that have been withdrawn for years to the detri- 
ment of persons desiring to settle as agricultural claimants, notwithstanding that 
upon those lands no mining developments have ever been made. 

I think it would be the preferable way for the government to classify her lands and 
then adhere to her classification at all events, no matter what subsequent experience 
might show. At present, as the law is, the sale at best is only conditional, notwith- 
standing the settler thinks himself secured by his patent ; for if his land is held and 
patented to him as agricultural and should be found to be mineral afterward his 
patent is no protection. I think if the sale is made by the government to the indi- 
vidual, either as agricultural or mineral, it should be final. There should be no reserva- 
tion, and all controversies should be settled. But the patent should be final so far as 
the mere character of the land is concerned. 

I don't recollect whether I stated, but I intended to have done so, that the home- 
stead law, like the pre-emption law, should be retroactive. Eights should date from 
the day of settlement, whether upon surveyed or unsurveyed lands. 

As to private land claims, the segregation ought to be done by all means, and 
speedily. It never will be done if left to the claimants to do, because it is to the in- 
terest of private grant claimants not to do it. I should suggest that when it is done 
permanent monuments of some sort be erected, because where lines of private grants 
have been surveyed settlers desiring to enter have no reliable means of knowing where 
the lines are run between the private grants and the public domain. As it is, the cor- 
ners when established are very soon obliterated, monuments that mark boundaries are 
often in obscure places and very difficult to find. It is always for the interests of the 
private claimants not to segregate, because they have the use of the public domain 
for stock purposes. What I mean by segregation in this instance is the separation of 
the private land claims from the public lands of the United States, so as to inform 
the public where the boundaries are by marking these boundaries in a conspicuous 
manner. 

It has been the practice of the department, when the boundaries of private ranches 
are undetermined, or where there is any question about the boundary, to withdraw 
from public entry the land in the neighborhood and sometimes to a considerable 
extent. 

Such cases exist here where plats of public surveys have been withdrawn for years 
pending the settlement of private land claims. Whole townships have been with- 
drawn when only a portion of the land is claimed. Parties frequently come to the 
local offices and want to make their claims to lands, but find it impossible to file upon 
these lands, get discouraged, and give it up. There is a great deal of public land here 
in just this condition. On account of the San Jacinto ranch we have three townships 
suspended. 

In the event of a compulsory segregation, I think the government ought to be at 
the expense of the surveys instead of the claimants. I think it would be to the inter- 
est of the government to do it. 

There should be some process by which the immediate restoration of lands would 
take place upon a forfeiture of a railroad grant. A vast portion of the public lands 
in this district is withheld from pre-emption and homestead by reason of the with- 
drawal for railroad purposes, notably on behalf of the Atlantic and Pacific and the 
Texas Pacific Railroad Companies. These withdrawals cover three-fifths of this en- 
tire land district. It takes an average strip through the entire district of about 120 
miles in width on an average. 

This withdrawal withdraws all the odd-numbered sections from disposition of any 
kind, and raises the price of even-numbered sections to $2.50 an acre, which price is 
in excess of the value of the land. 

A great many settlers are clamorous to make entries on these lands, and are prohib- 
ited from doing so. This paralyzes the disposition of the lands in this land district. 
Many of those lands are now occupied through the necessities of the people, and a 
large number of applications to file upon these lands, particularly within the with- 
drawal of the Atlantic and Pacific Railroad Company, are now before the department. 
Much litigation and much suffering hereafter will be occasioned by the attempts to 
enforce these grants. The attempt would be attended with much difficulty and even 
resistance. 

Every citizen interested in the prosperity of Southern California feels an abiding 
interest in the restoration of these lands to the public domain. 



88 PUBLIC LANDS. 

Testimony of William Neely Johnson, San Francisco, Cal. 

William Neely Johnson, of San Francisco, examined. 

I organized the land office at Sacramento in 1867, and was register until about May, 
1869. 

The timber lands of the State of California consist of two belts — one a belt that 
ranges near the Pacific coast, along what is here called the Coast Range, except that 
the Coast Range, as defined here, extends back northerly from San Francisco some 40 
miles, while there are valleys which make the timber lands commence three or four 
miles from the Pacific coast. The timber runs up into an altitude of 1,500 feet, and 
going westerly about 40 miles, where you find what is called the Coast Range proper. 
The next belt is on the Sierra Nevada Mountains. Therefore I say there are two belts 
of timber. I concur with gentlemen who have testified here in their classification of 
the timber lands — Mr. Redding and others. 

The difficulty of dealing with the timber lands arises from the impracticability of 
carrying out the present system of national law, which is in effect inoperative. That 
is my experience as a government officer. In a country like this villages have to be 
built up wherever there is a mining or agricultural center, and if the timber lands in 
the vicinity are not surveyed, or if the people cannot buy timber with which to build 
houses from the government, they will rake it without permission. They do not re- 
gard such taking as stealing. It is public property, and if the government does not 
pass laws under which they can obtain it legitimately, they will take it anyhow. The 
Central Pacific Railroad was obliged to have timber for the construction of its road 
over the mountains, and the timber was given it by law. But the question came up 
as to whether the railroad company would expend considerable sums of money in 
erecting mills to manufacture their own lumber or give out contracts to supply it, 
which latter they did, of course. Mills were constructed that run out from 80,000 to 
120,000 feet, of lumber every twenty-four hours. I know mills near Truckee that 
turn out that much lumber. They were erected upon government lands. Where they 
could get a survey made they would pre-empt a quarter section, build a mill on that, 
and use the timber on all accessible lands. 

The government can do nothing with the present timber lands without their being 
surveyed. 

In my judgment stumpage is only an incentive to people to commit trespass upon 
the public timber lands. I found that people who had made large disbursements 
were getting their employe's to file declaratory statements on timber lands under the 
pre-emption laws, and then cut the timber off, and the pre-emption would never be 
completed. The money was furnished by the mill men, and the laws of the United 
States were simply an encouragement to perjury. If you are going to prevent perjury 
you had better sell the timber lands in altitudes from 4,000 to 6,000 feet above tide- 
water, where the seasons are too short for practicable or profitable agriculture. Lands 
at such altitudes are of a peculiar softness, but have not sufficient strength to raise 
any of the cereals. You can raise vegetables, though, to some extent. There are little 
valleys where grain might be raised, but they are so inconsiderable in number and area 
as compared with the entire slope of 450 to 500 miles, having a width of 25 to 30 miles, 
that they should not be taken into consideration at all. These valleys are principally 
used for pasturage purposes. The timber on the mountain sides is valuable, but its 
great distances from market would make it impracticable for any individual pre-empt- 
ing 160 or 320 acres to bring it to market. To make this timber available it must be 
worked by combinations of capital. In this belt there are sections very sparsely set- 
tled. If it was the policy to preserve part of the timber, it should be done by reserving 
trees of a certain size ; but I have uniformly found that seeking to protect timber by 
employing agents was a failure. A man perfectly familiar with a certain locality might 
be efficient as a timber agent there, but he could not guard any considerable territory. 
I regard the employment of such agents as a failure, and I do not regard such a policy 
worthy of consideration by intelligent gentlemen. 

I think the timber in the belt of the Sierra Nevada should be sold in sufficiently 
large tracts to justify persons engaged purely in the lumber business in erecting suit- 
able mills. The price must depend upon the locality and upon the market. I do not 
believe a practical lumberman would engage in such an enterprise unless he could 
purchase directly from the government at least two to four sections of laud. 

I do not believe the acreage should be taken into consideration in fixing the price 
for the sale of the timber in this belt. The price should cover all expenses incurred in 
making surveys, negotiating sales, issuing patents, &c. Perhaps $2 an acre would 
cover this, but the people could well afford to pay $5 per acre. In the high altitudes 
the cost of surveying, plotting, &c, is great, and is much more expensive in some lo- 
calities than in others. This could be determined from the township plats returned 
from the local offices. 

I do not believe it is good policy for the government to withhold our timber lands 
from sale either to individuals or to capitalists. I have witnessed for more than 



PUBLIC LANDS. 89 

twenty-five years past operations in timber lands, and have almost uniformly found 
that where an individual locates or purchases a small tract of land in the timber belt 
he has voluntarily transferred the same to somebody else, or could afford to hold and 
work it himself. 

The timber belt upon the Coast Range of California, say from Santa Cruz County 
northerly, is composed of a different character of timber from that which grows upon 
the Sierra Nevada belt. The redwood timber grows along the Coast Range, passing 
from Santa Cruz northerly from San Francisco. Santa Cruz, Sonoma, Mendocino, and 
Humboldt Counties as far as the Humboldt River have a fine growth of large redwood 
timber. The trees grow closely together and are very large and tall. I have traveled 
through this rich belt of timber from Mendocino County to the Pacific Ocean, a dis- 
tance of 20 miles, over a road which was cut out by the government as far back as 
1856-'57. The timber along this part of the coast beltgrows so thickly that it is often 
the case that when a tree is felled it lodges between two others, and there are many 
places where perhaps the sun has not reached the ground in centuries. These trees are 
from 10 to 15 feet in diameter through the butt, and range from 150 to 250 feet in height. 
Many of them nearer the coast will reach from 75 to 100 feet with scarcely a limb. I 
have seen trees cut down in the redwood belt along the Pacific coast where 12 to 14 
feet above the ground they erected a scaffold and the chopping men got up about 12 
feet high where they cut the tree. I have seen trees cut there where the timber would 
be 15 feet wide 6 feet above the butt. 

The growth of the redwood tree is very slow. The soil along the Pacific coast in 
front of the Mendocino reservation is a dark loam that appears to be very powdery. 
The employe's of the Indian reservation planted potatoes one year and had a good crop ; 
the second exhausted the strength of the soil and afterward they could not grow any- 
thing upon it ; and I found that there is a rank vegetation on this range and where 
you cut the timber on the eastern slope there is a fair grass following the timber that 
sheep can live on ; but I know of no place on the western slope where you could sup- 
port one sheep to the acre. I think that as a general rule in this country you can 
safely pasture two to three sheep to the acre where you have a fair average rainfall. 
I would give on an average two sections of fair land for a pasturage homestead. I like 
the idea of a pasturage homestead. In California we can raise sheep enough on that 
amount of land to make it profitable. 

The Eucalyptus is of a very rapid growth and will acquire a diameter of 6 inches in 
four years. It does not need a great deal of water. Mr. J. T. Stratton planted Eucalypti 
upon the side of a mountain which was considered worthless for anything in the way 
of agricultural products, vegetables or cereals, and they flourished splendidly. He is 
supplying slips to the whole State now. There are several varieties of fine hard-wood 
trees in the State that are useful for manufacturing purposes. 

There is not a sufficient amount of rainfall in this country to render the land prac- 
ticable for agricultural purposes without irrigation, and the supply of water is hardly 
sufficient for that purpose. Therefore, as the land is worthless without the water, the 
two should be inseparably connected. 

I have had considerable experience in mining, both as a practical miner and as an 
attorney and agent for them, and I have come to the conclusion that the placer lands, 
which are chiefly situated in the foot-hills of California, should be sold immediately 
by the government. Let them pass into private ownership, and there is scarcely a 
quarter section that cannot be utilized for the finest qualities of fruit and vegetables. 
They form splendid and healthy locations for homes for families, and they are infi- 
nitely more valuable for agriculture than for mining. Fifteen or twenty years ago 
the government, simply upon a superficial and inefficient survey, without proper ex- 
amination, reserved as mineral lands hundreds of thousands of acres, affording pre- 
text for much litigation as to their agricultural or mineral character. While register 
of the Sacramento land office I had occasion to pass upon eight or ten thousand acres 
of land in certain counties which had been suspended by an order from the Land 
Office in Washington in 1859, and withdrawn as mineral in character and withheld 
from homesteading. When an examination was held we found that there was not one- 
quarter section in ten that had not had holes sunk in the ground here and there by 
miners fifteen years before, and yet the land was purely agricultural. The same 
thing will apply to the counties of Nevada, Sutter, Calaveras, Amador, El Dorado, 
Butte, and all the counties that lie along the foot-hills in what is regarded as the min- 
eral belt. This would embrace the hillsides north of a certain latitude which are good 
for grazing purposes. They have wild oats growing upon them in many of the counties, 
and sheep and cattle can* remain in them the year round. They will find wild oats 
growing upon these mountains where you could not raise anything — but south of a 
certain belt this is not true. 

As regards the number of acres of average lands required to sustain a beef in Cal- 
ifornia, I know of no lands in the State from the Mohave Desert to Del Norte that have 
not natural grasses ; though in some seasons there are no grasses at all. My idea ia 
that 25 acres would sustain a beef. 



90 PUBLIC LANDS. 

I would suggest that the government turn over to the States all arid lands that are 
not worth settlement under the homestead and pre-emption law, and that the proceeds 
realized by the States from their sale be devoted to their reclamation to make them 
arable for farming. 

I would stop the system of hydraulic mining where it was injurious to agriculture. 
I would sell the placer lands as placer lands, and the purchaser should be allowed to 
use his land for any purpose he pleases. 

I would place the jurisdiction of timber lands, with strong restrictions, in the hands 
of local land offices, and I would have an act of Congress punishing perjuries com- 
mitted before the land officers ; and I would make the statute of limitation five years 
instead of one, for perjury in the land office cannot often be proven in less time. 

In my opinion, the forms in the land offices could be simplified. Under the present 
arrangement the settlement of contested cases is procrastinated and not expedited. 
The registers and receivers occupy an executive, administrative, and judicial position. 
In their judicial capacity they pass upon and decide important cases, sometimes in- 
volving many thousands of dollars. A litigant comes before an office where his case 
is to be decided and asks for a subpoena for a witness. Under the present system the 
local officers as a matter of courtesy issue it, but there is no law compelling the 
attendance of witnesses. There should be some way of perpetuating testimony in the 
local offices ; they should be allowed to use the seal of the General Land Office with 
their name in it. I see no need of a receiver any more than of a fifth wheel to a coach. 

I would change the present law of Congress concerning the rights of miners to take 
up mining claims. I would have the register of the local land office the recorder of all 
mining claims in his district. I would give the register the power to take and perpetuate 
evidence and afterward to certify it up to the courts. I would authorize them to take 
testimony in a contested mining claim before it is certified to the courts, aud then if 
they deemed it a case of contest, after having been passed upon by the Commissioner 
of the General Land Office, I would refer that case to the courts, but not otherwise. 



Testimony of George W. Jones, Alpine County, California. 

The questions to which the following answers are given will be found on sheet facing 
page 1. 

Exchequer Mill, 

Silver Mountain, Alpine County, California, October 14, 1879. 

Gentlemen : Having devoted the greater part of the past twenty years to prospect- 
ing, mining, and working various kinds of ores in Colorado, Utah, California, Canada, 
New Hampshire, and the Lake Superior iron and copper regions, I feel competent to 
answer some of your inquiries appearing in the Mining and Scientific Press of the 27th 
ultimo. 

The first question is answered in the above. 

Second. The width allowed by the present law is not sufficient to cover the width 
of all lodes in all cases in all sections of the country. As far as my experience ex- 
tends to Colorado, outside of Leadville district the ledges range from 3 to 10 feet in 
width. My experience in that section, however, was at an early day ; wider forma- 
tions or fissures may have since been discovered. I discovered several veins in Utah 
that were 60 feet in width. I opened what is now known as the "Jordan" Mine in 
1870, and exposed a body of ore 00 feet in width. I was defrauded out of the property 
by the workings of the old law regulating mining locations. The old Telegraph Mine 
is a continuation of the same ledge to the east. In this county, in Monitor and Silver 
Mountain districts, it is quite different. Here I find eight formations ; each formation 
consists of a group of veins or fissures, all bearing the same course and dip, showing 
the same outcroppings and producing the same combination of miuerals (when devel- 
oped) peculiar to themselves. The first and oldest formatiou produces gold and mag- 
netic iron ; the latter, when crushed and washed in the form of black sand, runs north 
14° west, and dip 32° west of the vertical line ; they are on a large scale, ranging from 300 
to 2,000 feet in width. The gangue is pure quartz stained with oxide of iron. The sec- 
ond formatiou consists of a ledge ranging from 120 to 150 feet in width, running due 
north and south and dip 14° west, from 100 to 500 feet apart. This belt is about five miles 
in width from east to west, cut off by the granite range west of Silver Mountain, and 
porphyry or trap east of Monitor. I have not traced thoir full length from north to 
south. This formation produces gold and silver of about equal value, copper and lead 
in very small quantities, zinc and iron pyrites ; the gangue is soft decomposed quartz, 
almost a clay. The ore is well distributed through the veins, but is richer near the 
east or foot wall side of the vein. This formation would be of immense value if other 
later formations had not distorted and mutilated large portions of it along their course. 



PUBLIC LANDS. 91 

The third and fourth have at no point been sufficiently explored to warrant my ex 
pressing an opinion as to their value ; they both run north of west and south of east ; the 
former dips to the southwest and the latter northeast. The fifth is composed of a group 
running magnetic north and south, dipping to the east. (Magnetic variation here 16° 
east.) They are thoroughly impregnated with iron in the form of oxide near the sur- 
face and sulphurets at lower depths, but do not produce the precious metals, as far as 
explored, in paying quantities. I would call your attention to au important fact that 
I have discovered in regard to this formation. The magnetic needle indicates the true 
north when passing over any one of this group. (All other fissures appear to have no 
effect upon the compass.) They are from 60 to 500 feet in width, and are from 50 to 
600 feet apart. Ledges of the sixth formation run west 16° north and dip north 16° 
east, and produce black oxides and sulphurets of copper, except at the point of con- 
tact with an older mineralized vein; ic then contains the combination of metals belong- 
ing to the ledge it is crossing, although it preserves its own stratification and gangue. 
I attribute this to the precipitating power possessed by the metal belonging to that 
particular group ; they are 120 feet in width, a few attaining a greater width. The 
seventh formation bears north 60° east and dips 8° northwest. The eighth bears north 
40° east and dips southeast. The last two formations have not had sufficient age to be- 
come mineralized; they show prominent outcroppings, as the action of the elements 
have not had time to decompose and obliterate them ; their width range from 10 to 
600 feet. As they are quite numerous, they destroy a large portion of the older min- 
eral-bearing ledges, and serve to deceive and mystify the miner by cutting off ore deposits and 
leading him away from the valuable ledges. 

I find similar combinations in Colorado and Utah, but as the formations are com- 
paratively narrow, the mineralized ledges are not cut up and displaced to the same 
extent they are in this section of the country. 

In Bingham Canon, Utah, I found several naturally worthless ledges being worked 
profitably, owing to the fact that the fissure worked cut a group of mineral-bearing 
ledges, enriching the otherwise worthless ledge, producing ore deposits in the form of 
chutes or chimneys. Prospecting beyond the line of contact with the mineralized 
veins, the walls and stratification remained perfect but destitute of mineral. 

4th. The courses of all fissures, as well as their width, dip, and comparative age, can 
be readily determined without any outlay of capital in developing, if proper means 
axe employed to that end. 

5th and 6th. Answered in my reply to the fourth. 

9th. As previously stated, I have found ledges in this section of the country, the 
width allowed under the present law not being sufficient to cover the full extent of 
the ledge. 

10th. I have thus far found that each group of ledges carry their regular courses, 
varying but three or four degrees, allowing for elevations and depressions of surface 
and the dip of the ledge. If they appear to otherwise curve or present an angle, it is 
owing to the presence of a later formation that may run nearly the same course; the 
dip will also probably change, although it may be but slight, and. the gangue and com- 
bination of minerals will also change. 

Having other facts to communicate and fearing my statements may be too lengthy, 
I will not undertake to answer the balance of your questions at the present time. I 
will state that I find each and every fissure possessing an electric current of its own 
independent of all others. I have been investigating its bearing upon mineral depos- 
its for the past twenty years and have given you some of the results of my discoveries. 
If the laws of nature were perfectly understood (and it is only a matter of time, as 
they are as plain and can be as readily comprehended by those who will devote the 
necessary time and study as the movement of the planets) there will be no occasion 
for the numerous litigations that are now hampering this industry, and the money 
now being expended in developing worthless veins would be employed in working the 
older mineralized veins and produce remunerative results. 

The " Comstock " was a source of wealth to the country while it was worked in its 
true dip to the west. When, reaching a later formation dipping to the east, the iden- 
tity of the old ledge was lost and destroyed and the later-formed ledge was followed 
in its dip until reaching the crossing of another old mineralized vein, cutting it in 
such an angle and dip as to form the "kidney" shape deposit found in the California 
and Consolidated Virginia claims. When the workings pass below the point of con- 
tact the ledge resumes its naturally barren condition until, at still greater depth, it 
may cut another of the mineral-bearing group. The fact that a drift has been run or 
a diamond drill sent into the " west country" does not demonstrate the incorrectness 
of my statements, as I find here fully four-fifths of the ground covered by the older 
formations also occupied by those of later date, and but few of the latter retain the 
wealth of the former at the point of contact. The older formations show no outcrop- 
pings but create depressions, as both chemical and magnetic forces decompose the 
ledge matter, rendering it more sensitive to the action of the elements. I could give 
you additional facts and information gathered from numerous fields that I have vis- 



92 PUBLIC LANDS. 

ited, but knowing the strong prejudice existing against the idea that any knowledge 
can be obtained beyond the point of the pick and drill, I shall await the result of my 
first communication in order to know if your commission is disposed to make use of 
these discoveries to assist in preventing the present waste of time, labor, and treasure 
under the present system, or rather want of system, in mining. 

At the present time mining companies, as a rule, are legalized lotteries where the 
manipulators take the prizes and the general public the blanks, the wealth of the West 
being absorbed into the overflowing coffers of the few. 

For various reasons I attribute mineral deposits to magnetic force or conducting 
power, as I find metals that are the least sensitive to magnetic influence are found in 
paying quantities only in the line of the older formations. Again, I find samples of 
the second formation, showing native gold, native silver, black sulphurets of silver, 
silver glance, zinc blende, pyrites both iron and copper, all separate and detached 
each from the other in the same sample. If the deposit had been formed by heat in a 
melted condition, or by infiltration, the deposits would have been in the form of an 
alloy. The iron and copper ranges of Lake Superior are but a few miles apart. If the 
deposits were formed by any of the means now advocated by scientists, some of the 
Portage Lake copper would have found its way into the iron range of Marquette from 
the latter point to L'Anse Bay. Again, here I find the fifth formation producing iron 
only, and the sixth copper, each group thoroughly impregnated with their respective 
metals in close proximity to older formations producing the " noble ■" metals. The* 
"Old Telegraph" and Jordan mines of Utah (the sixth formation) have yielded and 
are yielding (at present more particularly the former) immense masses of lead ore r 
but containing only from 11 to 25 ounces silver with a trace of gold, per ton ; except 
at the point of contact with older formations, where bunches of ore assaying up into 
the hundreds of ouncep are found. Again, the Winnemuck, also of Bingham Canon, 
(a vein of the fourth formation), yielded average assays of 60 per cent, lead and 60 ounces 
silver per ton ; at the crossing of two older formations masses of ore assaying 500 
ounces per ton was extracted. A slip of eighty feet displaces this vein in the lower 
workings. I could cite other instances to prove the correctness of my theory. From 
my own observation I should judge that fissures start from a great depth, probably 
many miles (perhaps thousands) from the point of outcrop, breaking through the 
earth's crust at points presenting the least resistance, where fractures have been caused 
by earlier upheavals, forming vast mineral belts consisting of groups of ledges, each 
group possessing different combinations or variety of metals, as the starting-point of 
each group (as they all have different dips), may be many miles away from other 
groups, and cutting through metallic deposits, the electric currents impregnating the fis- 
sure with the variety or varieties of metals encountered along their course. 

I am now in the employ of the Isabelle Gold and Silver Mining Company, Limited, 
of London; Lewis Chalmers, esq., manager. This company is engaged in running a 
long tunnel to strike a group of ledges at a great depth. Several months ago I made 
a survey of the various formations and stratifications they would encounter, giving 
their cleavage and fracture. They are now in something over 1,100 feet, and the 
workings thus far demonstrate thecorrectness of my survey. I would state that there 
is nothing in the appearance of the formation where exposed at the surface to indi- 
cate the various changes they have already and will in future encounter. 
Yours respectfully, 

GEO. W.JONES. 

The Public Land Commission, 

P. O. Box 585, Washington, D. C. 



Testimony of Charles Justice, of Wheatland, Cal. 

Charles Justice, of Wheatland, Cal., testified at Marysville, October 27. 

I have lived here for nearly thirty years. I came here in May, 1849. I am some- 
what acquainted with the progress of California settlements among these valleys. I 
purchased a farm on Bear River in 1854 and came to reside there in 1857. I was in the 
cattle business up to that time. 

Question. What has been the progress of settlements since that time ? How early 
did they commence farming here ? — Answer. Mine was about the first farming done 
here. There was a little farming in 1853, It steadily increased since that time until 
1862, and then it commenced to decrease. The waters in the river in 1862 commenced 
to come down so muddy that they filled up the channel of the river and overflowed the 
farm lands on the river banks. That was the commencement of the filling up of 
streams. I commenced farmingin 1854. I sowed a large crop of barley. At that time 
when the water was low it was about 16 feet from the surface of the land to the sur- 
face of the water. The water was still deeper than that. The water would fall in the 
river some 16 feet. It then commenced to fill up until the whole channel of the river 



PUBLIC LANDS. 93 

became entirely filled up. I built niy house in 1854, and I placed it about 2£ feet 
above the levee on large blocks of wood so there would be a circulation of air under 
the house. I remained in my house until 1867 ; previous to which time the whole of 
the channel became filled up ; in fact the mud and sediment and sand got out on the 
land, and the water, some two or three winters ago, got into my house while I was 
living in it. The first time it ever got in there I heard a sort of rumbling noise, and 
1 said to my wife, there must be some water running somewhere ; so I put my foot out 
and stepped into the water on the floor of tLe house. We moved, away from there in 
1869, and since then the water has got up to within about 3 feet of the ceiling of my 
first story, which is 9 feet high. It has filled up on my farm about 9 feet deep. My 
house has gone. You can just get into it by creeping into the highest story window 
I had a very pretty place that cost me $4,000, and I had to vacate it. 

Q. Do you farm any of the lands ? — A. It cannot be farmed now. It is of no value 
whatever now. If I was to offer it for sale to-day for one cent per acre no man would 
buy it. It is not worth anything. 

Q. Describe the character of the land that the farming was principally carried on 
upon prior to 1862 ?— A. It was altogether bottom land ; there was no red-land farm- 
ing at that time. In 1853 that land was covered by water, but that was clean water 
and in six hours it went back and there was no damage done. 

Q. The injury, so far as you know, is confined to what is known as the flood-plain 
lands or bottom lands, is it not ? — A. Yes, sir. Since then it has extended out more 
and more, and filling up the flood plains will widen it in many places more than a 
mile on either hand. The rise of a foot will widen the surface about a mile back from 
the river. 

Q. The slope, then, from the higher land to the flood plain is very gentle ? — A. Yes, sir, 
when you get a few miles from the foot-hills ; when you get near the foot-hills it is 
very steep. 

Q. To what extent along the Bear and Yuba Rivers has the flood-plain been widened ? 
— A. In some places it has widened a mile, and some other places more than a mile, 
and in others it is not very wide. My farm was within three or four farms of where 
the water debouched from the mountains. 

Q. Take the Bear on both sides, from the foot-hills — the river to its mouth where 
it enters into tbv Feather River — how much has the flood plain been spread on either 
side there ? — A. In many places the building of levees has stopped the spread of the 
water; then at other places it has widened out considerably. I should think on an 
average it is over half a mile wide on each side of the river. It would have been still 
further widened if it had not been confined by these large levees. 

Q. Where these levees have been constructed the water depth has filled up against 
the levees, over the old flood plains to the present flood plains ? — A. In some places it 
has filled up on an average 6 feet. 

Q. On what side of Bear River are the levees ? — A. On both sides, to some extent. 

Q. How wide apart are these levees ? — A. In some places 200, in other places 400 or 
500 yards wide. The levees have not been built systematically, but wherever it suits 
them. These levees have been constructed by individual enterprise. I spent much 
money in building levees, but they have all been washed away. 

Q. What is the character of this debris f — A. The greater part of it is gravel and 
sand, and wherever it has overflowed nothing will grow upon it. The silt or slicking 
goes on over into the Sacramento River when there is a rise in the water. It spreads 
over a greater surface the lower it goes, so that the slicking as the water commences 
to go slow commences to settle. 

Q. Suppose that you could provide for the retention of the gravel and sand, to what 
extent would the slickings injure the country ? — A. I think it will ruin it. I never 
raised anything on slickings in my life and never could, unless I put rich, black dirt 
over it. 

Q. These flood-plain lands, which were originally farming lands, were not irrigated, 
were they ?— A. No, sir. I commenced to make my farm in 1854, and in 1862 I had all 
the varieties of fruits, apples, cherries, pears, plums, apricots, and most everything a 
man could think of. I had all sorts and kinds of roses ; I had yellow, red, green, and 
blue ; and I had everything on it that a man could wish for to make it a home. I 
raised everything that I wanted ; my principal crop was wheat and barley. I raised 
corn, potatoes, pease, beans, cucumbers, and all the other vegetables I wanted to use. 

1 did not raise anything to sell but wheat and barley. I had some cattle on the hills 
back of my place. 

Q. Are you as well acquainted with the valleys of the other rivers as you are with that 
of the Bear ? — A. No, sir. I am acquainted with the Yuba River. In the early days 
when we lived right down here we used to ford it. We used to ford all our cattle 
just here at the Buckeye Mill, and I have seen the river when it was not more than 

2 feet and pretty clear water. I have got on board a steamboat on the Feather River 
here many a day and gone right to San Francisco. 

Q. Is this debris filling Feather River also ?— A. Yes, sir. 



94 



PUBLIC LANDS. 



Q. Does it overflow the "banks of Feather River as it does the Bear River? — A. Yes, 
sir. I have seen the Feather River below the mouth where the Bear River enters into 
it, and they have built levees on both sides of it. Feather River sometimes rises 6 or 
8 feet above the level of the land. I believe the government has expended some money 
to try and keep the Feather River navigable. 

Q. Where would the water have spread to if the levees had not been built ? — A. If 
the levees had not been built, it would be almost impossible to tell what would be the 
extent of the flood plains of the river now. I think all the country from the mouth of 
the Bear River, where it comes out of the mountains, clean to Sacramento City — hun- 
dreds of thousands of acres of land — if this thing continues will in less than ten years 
be destroyed. 

Q. Where would that river now run if it was not for the levees ?— A. It would prob- 
ably be three miles out on the plain now if the levees had not been built. In one 
case, on the farm of Mr. Brewer, where the levees broke the water extended back more 
than a mile. 

Q. Do the levees break frequently ? — A. Almost every year. 

Q. Do they increase the height of the levees f — A. They have, partially, on this side. 
They have built them regularly every year, and on the opposite side the water appears 
to come from the south, and breaks the bank in that direction. The right bank of the 
river, coming toward the mouth, is always the highest side of the river, because the 
river tends toward the south. 

Q. What was the character of the stream for fish before this debris commenced com- 
ing down ? — A. Well, sir, we used to catch wagon loads of salmon near my house. 
There was plenty of salmon there ; now none can live in that water. 

Q. Are there fish in any other river ? — A. I don't know. 

Q. Do the trout come down ? — A. Not a great many ; the water is too muddy. The 
salmon come up the Sacramento River in preference to coming up the muddy water. 
I remember very well I had a partner who had a fishing-boat ; he afterward built a 
bridge, and the bridge washed away and the boat sunk. I remember telling my part- 
ner in 1862 that we would not live to see it, but I said I have got children who will 
live to see the day that the sand will be up to the ceiling of this house, and I have 
pretty nearly lived to see it myself. It only lacks 2 feet of being there now. 

Q. How far from the mouth of the Bear River are you ? — A. About ten miles. 

Q. How far from the foot-hills to your farm 1 — A. Thirteen miles to the foot-hills. 

Q. Does the silting increase in volume up the stream from you ? — A. There is more 
up stream than there is down ; it is higher up stream. At the mouth of the river, 
where it comes out of the mountains, it has filled up- as much as 30 feet. 

Q. How much has it filled up at its mouth below Bear River ? — A. I cannot say. I 
have not been at the mouth of Bear River for many years. 



Testimony of J. H. Keyes, Marysville, Cal 

Marysville, October 28, 1879. 
To the Public Land Commission : 

My name is J. H. Keyes ; I am a farmer and reside on the south side of Bear River, 
in Sutter County, State of California; I have resided at my present residence 
since 1856. I have observed the flow of mining debris since 1862, at which time it first 
made its appearance in the channels of Bear River, filling the lower sloughs with 
liquid mud^ and since the year 1865 the flow has been continuous, and increasing from 
year to year until at this time it has filled all the old channel of Bear River and 
raised the bottom lands where they are not protected by levees to near the level of 
the plains, the deposit of de'bris varying from 3 inches to 15 feet in depth. I make 
this statement of facts as to the effects of the flow of mining de'bris over agricultural 
lands that your honorable Commission may not be led into errors by the theories that 
have been presented you by some of the statements that have been made to you : 
first, that our rivers were filling up from the washings from plowed lands; secoud, 
that the de'bris was a valuable fertilizer; and, third, that if it was doing any damage 
it was but small in comparison to the great interest of hydraulic mining. 

I do not consider the first proposition as requiring any refutation at my hand ; for if 
the working of farming lands produced this great amount of wash, all the river chan- 
nels in the world would have been obliterated long before hydraulic raining was ever 
known. And I have never read of any rivers having their channels obliterated in the 
short time of ten years by washings from farming lands. It is a fact that all of our 
rivers run upon high ridges, with large bodies of tule land on each side, in which the 
wash of the greater portion of the farming lands would find a place of deposit, and 
consequently leave our rivers free from all tilling from this source. 



PUBLIC LANDS. 95 

Second. That the mining debris possesses great fertilizing qualities. It is a fact that 
the soil of the mountains within the mining belt is composed of matter not deleterious 
to agricultural lands; but the proportion of this is as one in two or three hundred 
parts, while that which comes from a greater- depth possesses none of the vegetable- 
producing qualities. Neither wheat, barley, nor any of the cereals grow with any 
success upon any lands covered with d&bris to a greater depth than the plow can 
reach. Corn grows plenty of stalks, but does not ear well. Potatoes grow but spar- 
ingly. It is not the case, as stated by one of the parties before your honorable Com- 
mission, that the best potatoes are raised upon the sediment land, and two crops in 
the year ; but most of the potatoes raised on Bear River are raised on the original soil, 
where it is protected from the flow of mining debris by levees 12 and 15 feet high. 
Nearly all the vegetables grown upon sediment land are of an inferior quality, and in 
no way has the debris benefited the farming lands that are now covered with it. On 
the contrary, the mining debris has permanently destroyed in the Bear River bottoms 
several thousand acres of the very best farming land in the State ; and another effect 
of this covering of the bottom lands with debris is that there forms on the surface 
of the filling a white crust of alkaline substance, near which no vegetation grows. 

Third. That the damage was small in areas and values as compared with the min- 
ing interest. This question must be considered in all its bearings upon the material 
prosperity of the State. It will not do to decide it upon the relative value of an acre 
of mining land and an acre of agricultural land. At this time, if the acre of mineral land 
contains fifty or one hundred thousand dollars, it is valueless when the mineral is ex- 
tracted (if done by the hydraulic process), while the acre of agricultural land, with 
its continuous productions from year to year, so long as the product of the soil is re- 
quired to support human life, is valuable beyond computation. Nor is the acreage 
small when taken upon all the streams that are like affected, which has been va- 
riously estimated at from three to eight townships of government survey. Nor is this 
but a small portion of the damage as compared to the obstructions of our navigable 
rivers and the filling up of the bays and harbors. The statement of one of the min- 
ing experts before your honorable Commission that the farmers contributed fifteen- 
sixteenths of the filling to the miners' one-sixteenth only requires one look at the 
streams (that are the outlet of the hydraulic mines) from the window of a passing 
train to convince one of the unreliability of this statement; and, from my observa- 
tion, I should change the proportion to one part contributed by the farmers to ten 
thousand parts contributed by the miners. The covering up of the lands of the river 
has driven the people aw^ay: Where before this destruction commenced there were 
prosperous communities, school-houses and churches, to-day is a sand waste, unfenced 
&nd ; 'Uninhabited, growing nothing but willows, with here and there a cotton wood. 

Tbisrwitness also states that great damage would be done if the mines should 
stop by reason of debris coming down'. 

If this< theory is correct^ then when the mines are exhausted we may expect a 
deluge of mining debris, or go on sending down the mountains indefinitely. I con- 
sider the damage done to ."the present time greatly underestimated. The filling 
done in the rivers and bays can only be determined by actual 'survey; which is now 
being done, and a report isto be made. 

Hoping that you will get the true facts on the subject of your investigation, 
I remain respectfully, 

J. H. KEYES. 

I 

. . - 

■.■'■• " 

Testimony of H. L. Knight, at San Franoisco, Cal. 

- " i 

On October 8H. L. KNIGHT appeared before the Commission at San Franciseo, as he 
stated, on behalf of the workingmen's party, and testified as follows : 

Question. What class Or party do you represent?— Answer. I was the first secretary 
of the' workingmen's party when Mr. Kearney first came into existence, and when he 
became emperor and dictator I seceded. I do not now belong to what is equivocally 
called the workingmen's party. At the same time I still represent a large party who 
are interested in some reformatory measures, particularly ju our land system.. 

Q. Do you recognize the classes of land based on the physical characteristics that' 
we talked about this morning f — A. Yes. I have been in the State of California since 
1862. I have repeatedly canvassed the State over and over and talked with farmers ; 
I have seen the whole of it, and know it as I do San Francisco. I recognize the dif- 
ferent classes— mineral, irrigable, timber, and pasturage land. 

Q. What system Would best secure the preservation of the timber and its utiliza- 
tion for the best industries of the country ? — A. Let me say one more thing. Perhaps 
it will explain further my position. I have been in England, Ireland, Scotland, 
France, Germany, Italy, Spain, Mexico, and over most of the United States, and lam- 
familiar with the United States land laws as they are. I have practiced some in the 



96 



PUBLIC LANDS. 



land office as attorney in the State of California, and I come here representing those 
who are opposed to land monopolies in every shape, and I wonld desire to so manage 
the public domain as to prevent, as far as possible, the patrimony of the people 
falling into a few hands. Let me say to you that I am the farthest removed from the 
communistic fallacies of those who want to throw everything open and want to have 
the land in common. To make the land useful it must belong to somebody that will 
take care of it. The first thing to be done is to have something to distribute, and the 
next thing is to distribute it. As a general thing communism and all tendency to 
communism is not (i. e., against) private ownership in lands, and tends to the protec- 
tion of nothing. It proposes a wide distribution, but it utterly fails as a protective 
system. In our State, as a gentleman stated here this morning, our lands had been 
thrown open, and every man has destroyed the timber and turned his cattle upon the 
grass, and the result is that everywhere the oats and other wild stuff has all gone, and 
the cattle, in consequence of the dearth of grass, have in a great measure died, not 
having enough grass to eat — a dead loss to the State and country. My opinion is that 
the land of the State should, as soon as possible, be put in the care of private owners, 
but the general policy of the government should be, as quickly as is consistent with 
public interests, to dispose of the land in some way or other, and always to those who 
are actual settlers on it and improve it, no matter what the condition is. 

Q. How can you do this ? — A. First, you have observed, in relation to the irrigable 
land where one quarter section is competent to maintain one family, I think the old 
method is a good thing— that is, the homestead and pre-emption method ; but there 
are lands in this State that are utterly debarred from settlement in this way, and my 
opinion is that the government might own them a hundred years and no man could 
take hold of them in that manner, because the land itself is not worth the govern-* 
ment price by a long ways. Consequently no one-quarter section of this land will 
maintain a family or do anything toward it. These lands are of a different class. 
Take first the plains lands that require irrigation. In relation to that land I would 
make a rule that after being in the market a certain time, if no one takes any of it) 
no one wants it, and the government was well satisfied that without irrigation it is 
not available for settlement, and that individuals will not apply for it, this land should, 
then immediately be offered in large tracts to companies, binding such companies as 
purchased it to expend money in irrigating it, and binding them to sell a given pro- 
portion of it to actual settlers within such a length of time. 

There is the timber land. In this country some of it is very valuable, and some of 
it perhaps not worth $1 .25 per acre. The timber lands should be appraised and offered 
for sale at once. Some of it will, perhaps, sell for $20 per acre. I do not know, bu^ 
whatever the price might be the best interest of the State requires that it should all 
pass from the general government to private ownership, that it might be liable: to 
taxation in the State and undergo some sort of improvement. 

But let me here put in a sentence concerning another matter. There is a large 
quantity of land in the State that was granted to different persons for different pur-> 
poses. Their right is perfect, and it would never be disturbed. I think the general 
government ought to pass a patent to these parties at once, so that their laud migfet 
be amenable to State taxation. That would apply to the railroad lands and to other 
grants of lands. The State needs the revenue that could be derived from thiejhi. 
This timber land should be graded and offered for sale to anybody. These lands are 
valuable only for timber. There might be a yearly reduction of price — a greater re- 
duction — say every five years, so that the lands not taken the first five years should 
during the next five years be offered at a lower price, and so on successively until 
the cost would be so low as to warrant the speedy taking up of them all. 

There is another class of mixed lands in the foot-hills. Some of the land is valuable, 
here and there, in small patches. I have my eye on a great many little valleys in the 
mountains where, after having ridden twenty miles through a desert- that isi wottth 
nothing, I have come upon a small creek, where there were a number of settlers, with, 
their families located in a straggling manner along the creek for ten miles. Supk 
places as these are not worth surveying, and hardly worth the attention of the gov,-; 
ernment. In the Alps in Europe there are lands similar to these. A man has gone on 
those lands, and at first the place he located on was not worth anything, but as years, 
went on he made the land worth something. I think there is hardly a township in 
California but what has little isolated spots capable of the same thing. I believe that 
as to State lands throughout the State of California it would be better for the govern- 
ment to make an arrangement, either through its own surveyor or through the county, 
surveyor, to let him award to any man who would go aud make settlement on these 
little pieces of land just as great a quantity as he deemed necessary for the main- 
tenanco of a family. I would give such a man a liberal supply, aud yet not make him 
a land monopolist. I think in some cases a square mile might do it, and in other cases 
four square miles, and in still others nine square miles. I am bold to say in some eases 
it would take a township to iuduce him to go there, aud the government should give, 
him a fee-simple title to it; I think it would be wise to do so— wiser than to let it 



PUBLIC LANDS. 97 

remain the property of the government, at the mercy of depredators; and if it is tims 
ber land, to have the timber taken off from it, and if it is fiat land, to have all the gras- 
grazed off of it. I am opposed to monopolies, and of the land I would be very sparing, 
but land like that I would give enough of it to any man who would go on it to induce 
him to establish himself there. 

We have very large bodies of irrigable land in this State that are reasonably pro- 
ductive, providing water can be got to them, but water can't be brought there by any 
individual owning a quarter section, or one section, or even ten sections ; it must be 
the work of large companies; therefore I would advise the government, wherever re- 
sponsible companies apply for such a body of land, to make it over to them on con- 
dition that they would spend so much money, and that after so many years they should 
sell so many sections or quarter sections to actual settlers. I do not know of any 
other way of making them valuable. 

Q. How would you dispose of the grazing lands ? — A. I would dispose of them in the 
same manner as the waste desert land in the mountains and foot-hills. Every man 
who. by going into some land office or some other designated office and making oath 
that be wanted so much land in such a place, and that its quality was such that the 
amount specified by him was not more than was necessary for the maintenance of a 
family, should have it, or as much of it as would be necessary for that purpose, for $200 ; 
or allow him to homestead it. I would allow him to get title at once. I would limit 
the quantity in proportion to the quality of the land. If it required a county to sup- 
port his family, I would give that. I would give it to some man who would take care 
of it and bring out what there was in it. At the same time I wish it to be distinctly 
understood that I am opposed to monopoly. Put the land in private ownership ; I 
do not care what it is ; call him a private owner if you please, but let him set to work 
to develop some value there, so as to bring taxes to the State and population to the 
country. Throwing these lands open to everybody only encourages trespass and dep- 
redations, and discourages all improvements. 

There is one thing more I wanted to say. I suppose you know I am not in favor of 
the Chinaman. The Chinaman has been such a retarder of settlement in this State, 
keeping down its population, its wealth, and its prosperity, as no other one circum- 
stance has done, besides impoverishing the land office in this way: There is a great 
ranch of 10,000 acres of land ; I know of several in the State larger than that. You 
will find a great number of Chinamen employed on one of those ranches ; all the solid 
work is done by Chinamen. The owner hires a few white men, but the solid work is 
done by Chinamen. The white men are taken on and discharged at different times, 
when there is a hurry in the work. On or iu the neighborhood of this ranch there 
are little nooks or valleys along the water-courses, where, if that farm employed white 
men, these white men, steadily employed on that ranch, would discover these nooks 
in course of time and take them up and establish their families on them. They would 
buy the land and build cottages, because they could get work on the big ranch when- 
ever they pleased and work their own places at odd times. In that way they would 
open up small farms, and in that way the country could be settled up, and with their 
wives and children they would soon make villages. But as it is now the ranchmen 
employ Chinamen, and these little nooks go to waste. I could find twenty thousand 
places of this kind that would make homes for white men, with their wives and chil- 
dren, if the men could find employment until they could get fairly settled upon it. 

Q. What have you to say about the destruction of timber by fires? — A. Non-owner- 
ship of the public land induces depredations of every kind. I have lived in the mount- 
ains and on the open plains, and there is hardly a township in the State where I have 
not been, so that I am acquainted with the whole of it. The State wants private 
ownership to protect the timber. It is destroyed to a great extent by fires, and cut. 
It is hard to state which is the worst. Fire, when well started, does a good business ; 
but the cutting is constant and perpetual. Men travel through the forest, cutting the 
finest timber they can find for the most paltry purposes. Private ownership would not 
permit that. I believe it should be sold at once. I believe in private ownership. 



Testimony of E. F. Knox, San Francisco, Cal. 

E. F. Knox testified at San Francisco, October 11, 1879. 

I have been considerably engaged in mining for a good many years up in the north- 
ern part of Napa County. The only thing that has occurred to me about the land in 
that section of country is concerning what is denominated third-class lands, or lands 
that are covered with chaparral, which also covers the mountains, although here and 
there you will find a little valley in which there is something growing ; and it was in 
reference to this chaparral country that I think there might be improvements made 
in the manner of surveying them, so that some of the lands would get into the market 

7lc 



98 PUBLIC LANDS. 

and be used. The chaparral grows on the coast range of mountains and into the 
interior through the whole mountains. The Saint Helena Mountains are 4,400 feet 
high, and these mountains probably range from 1,500 feet up to the height of the 
Saint Helena Mountains, and all of them are covered with chaparral and a growth of 
brush not amounting to timber. There are portions of that land that are wanted by 
the people ; and, as the whole is not worth surveying, what I was going to suggest 
was this : that there can be an improvement in the matter of surveying that land by 
having the government make the survey in townships. Then anybody that wants 
that land can go to the county surveyor and find it for himself. If the United States 
sectionizes the land it has to be found by the county surveyor, because the stakes rot 
out and because the government only divides the land into 640-acre tracts. I believe 
this same system might be equally well extended to all classes of land. The govern- 
ment should only township it, and let the sectionizing and subdivision be made by 
the county surveyor. In this kind of country there are a great many townships that 
are not worth surveying, and never will unless some such system as this is adopted. 
I think there is considerable of that land that would be good fruit and vineyard lands, 
but it is not in demand at present. It seems to me that this system of surveying could 
be advantageously adopted in all the public lands. There are a great many townships 
right around here where the quicksilver mines have been surveyed; but, because of 
the hurry, the lands were not surveyed. It costs twice as much to township that land 
as it does open lands. No surveyor can run more than one-half the lines a day that 
he can in other countries. That difficulty may be overcome by triangulation to a con- 
siderable extent. 

There is one other thing that occurred to me in reference to entering mineral claims, 
in regard to which I think the laws should be a little changed. It now requires that 
the advertising shall be done in the papers nearest the mines. In the first place, the 
advertising amounts to very little ; and, in the next place, the newspapers where you 
are obliged to insert an advertisement will charge you twice or three times as much for 
it as if it were optional to advertise in that paper, and I think the newspapers ought 
to be compelled to charge commercial rates, unless you are allowed to advertise in any 
paper you please, so that there will be competition. I think, also, that the attorney in 
fact ought to have the right to do all his client's business after the application has 
been made by the claimant. The whole matter, as I regard it, should rest with the 
district land office, and the county recorder could then be made a deputy of the dis- 
trict land office. I will also favor the trying of all contests in the district land office, 
and will suggest that the district land office should have a seal. I think it is impor- 
tant that they should have the power to perpetuate testimony and subpcer a witnesses. 

In reference to homesteads, they are very popular in this country, and it is very pop- 
ular, too, in some people, to vote away other people's money and other people's land, 
and it is a question in my own mind whether anybody has a right to vote away 
property that belongs to me and other people. I do not believe that the homestead is 
right. I think there are ways by which the government may control speculation in 
property by putting a higher price on its lands. The land should be got into the hands 
of actual settlers and cultivation as soon as possible, and it is bad that the lands are 
allowed to be bought up in large tracts. Now, if the government should put a higher 
price and give a liberal time for payment at a slight interest, I think it would stop 
speculation and give the land to the producers. 1 would do away with homesteads, 
but I would not abolish pre-emptions. I think it would be but just to allow a com- 
pany, by its officers, to enter as much timber land as an individual could enter. The 
mining corporations must have wood, especially in quicksilver mining; if they cannot 
buy the land from the government they will steal the timber. If a man goes to enter 
a piece of land for the benefit of a friend, he then goes in and makes oath that he is 
doing it for his own benefit. The law in this respect is evaded by a man swearing 
with a very loose conscience, in order to get hold of land that he would not be entitled 
to under the law. 

Q. What system of disposing of the timber land would preserve the timber and be 
beneficial to the interests of the country ? — A. My idea is embraced in the general re- 
mark I made a few minutes ago, that the sooner these lands are in the hands of any 
person who will pay taxes on them the sooner the timber will bo preserved. The only 
question is, not to get these lands into the hands of large speculators. I believe right 
there comes in the question of how you shall put the price, so that it will not pay to 
speculate in the timber lands, but at the same time such a price as will enable a man 
to invest in the timber for manufacturing purposes. I do not think $5 per acre will 
be too much. I would sell the land in quantities to suit purchasers. I would not sell 
it for $1.25 per acre ; it will be gobbled up by speculators if you do. 

Q. How would you dispose of the irrigable lauds?— A. In general I would dispose of 
them in the same way. I would have graded prices for the different classes of laud. 
I would not sell the third-rate land for as much as the first-rate land. I would grade 
the land by the government surveyor when he surveyed it, and sell it according to the 
grade he gave it. 



PUBLIC LANDS. 99 

Q. How would you dispose of the pasturage lauds ? — A. For the pasturage lands I 
would recommend the same disposal. Allow a man to buy as much as he wants, after 
putting a proper price upon it. There would be danger that they would take up all 
the water ; I do not know just how to prevent that, for sometimes taking up the 
water enables a man to hold adjacent land. 

Q. Would you allow prospectors to prospect on the placer lands? — A. If a man has 
a right to enter a large tract of land up in the mining section that might be desira- 
ble ; but in this coast range there is no mining, and in regulating the matter by gen- 
eral law you must grade them, because this is a thing which the miners would see at 
once, and of which they would be exceedingly jealous. It might work badly in the 
mining section of the country to allow anybody to go and enter 640 acres of land for 
grazing purposes, although that would be too small an amount for that purpose. Why 
not have a system by which anybody could enter and buy the land, and buy the sur- 
face right to the ground, leaving out the lodes which might be under the surface ? 
The privilege of mining could then be sold separately. I would divide the two rights. 
The man who buys the land for grazing purposes ought not to keep out a man who 
wants to dig in the earth for what is in the land and is more valuable a thousand 
times. 

Q. Have you had much experience in mining '? — A. I have had considerable experi- 
ence in regard to quicksilver near Knoxville. The Knox and Redding mines have been 
more successful than any other mines of that character. It is a fact that in quicksilver 
deposits there is no such thing as a lode : there are seams, found generally in the ser- 
pentine. They sometimes lie down, and sometimes stand up. The Alamadan deposits, 
so far as I have observed the seams that have been worked out, have been between 
200 and 300 feet long by perhaps 150 feet perpendicular and 60 or 70 feet wide, being 
smaller at the top than at the bottom. So far as my observation goes most of the 
quicksilver deposits are in that shape. I am under the impression that it is infiltration 
that has made it. I do not think the lode law applies to the quicksilver. I would 
suggest that the laws be amended in regard to the quicksilver mines, and that the area 
should be vastly enlarged. The law is evaded now, to some extent, in this way : a 
large number of men join and thus get enough land, to make a mine ; for instance, 
three men will form a company to work a mine as a whole. I think it a more desira- 
ble way to sell the quicksilver tracts in 40 acres, as in placer claims. The quicksilver 
district is very large, and so far as it is developed at present will commence with Lake 
County on the north and will extend into Sonoma, Napa, Yomo, and Calusa. I do not 
think there is any in Marion, but in Sutter there are valuable mines, and in Fresnal 
and San Luis Obispo there are mines. These counties produce nearly all the quick- 
silver in the State. There is some little quicksilver mining in El Dorado County. At 
present I think the production is about 400 flasks, running about 70£ pounds to the 
flask. If the quicksilver was sold for 60 cents, so that all the mines could be running, 
I think there might be 75,000 flasks taken out a year. It is so low now that a great 
many of the mines have shut down and some of them are bankrupt ; but in case of 
failure of these mines quicksilver would go up very rapidly. The supply might be in- 
creased very much more if there was any demand for it. The price, in my opinion, 
should not be less than $5 an acre for the quicksilver lauds. I do not believe in selling 
the land at $1.25 per acre. I think they should be graded before they are sold. Placer 
lands should be sold for $5 per acre; if it is not worth that it is not worth anything as 
a mine. The lowest I have ever known quicksilver to be was this summer ; it reached 
the price of 33 cents ; I have known it to be $1.55 per pound. You will generally find 
the quicksilver in the dirt. There is no apex to a lode. You will find it sometimes 
when there is a wash. 

In addition to the above statement, Mr. Knox submitted the following letter : 

San Francisco, October 11, 1879. 

Dear Sir : In addition to what I said this morning on the land question and survey, 
&c, would add that of the survey in townships I would have township plats drawn 
as at present, except that the sections and subdivisions would be full as if the survey 
was perfectly accurate and sell 640, 320, 160, 80, or 40 acre tracts. The county surveyor 
would give the earlier locations full acres, and if the last entries were an acre or two 
over or short the improvements in the surroundings made by the first locators would 
more than compensate for the difference. 

To grade the quality of land and sell at a price reasonable to settlers, and yet high 
enough to keep speculators from gobbling it, is the happy medium to be reached. By 
this system some land would quite likely be graded too high, and to correct this pos- 
sibility I would after land had been in market five years remaining unsold reduce the 
price— say 20 to 25 per cent. — after ten years another like reduction, and after fifteen 
and after twenty years until it was reduced to 25 cents. 

By giving purchasers time to pay at a small rate of interest they will not be op- 
pressed, and speculation shut out and government get twice as much as now for the 
land, and everybody get a piece of land that wants it. If you and the author of the 



100 



PUBLIC LANDS. 



homestead law heard men curse the government as I have while they were living on 
the land government gave them without consideration, I think you would say with 
me the homestead law should be repealed. The freedom with which some people vote 
away other people's property is astonishing and I find no parallel to it so to the point 
as the story of the " unjust steward," which you may have read — his sagacity was com- 
mended, hut not his high-toned honesty. 
Eespectfully, 

E. F. KNOX. 
Hon. Thomas Donaldson. 



Testimony of William J. Lewis, of San Francisco, Cal. 



William J. Lewis, civil engineer, resident in San Francisco, testified October 15, 
1879, as follows : 

I have lived in the State since June, 1849. I was a United States surveyor for some 
time, and have had considerable connection with the department since the establish- 
ment of the land office in this State, and I made some surveys before the land office 
was established. My first surveys were made in 1850. 

Question. What disposition should the government make of the timber land ? — An- 
swer. I think that it would be difficult to make a general law. A law that would 
apply to the southern portion would not apply to the middle }3art of the State. To 
the north of this there is a very dense timber land. When you go further south it is 
much more limited. I think south of this I would sell the land absolutely in tracts 
of, say, 160 to 320 acres. Take Santa Clara and Santa Cruz for instance : a great deal 
of redwood there has been cut off, and all persons who hold tracts of 160 acres can 
cultivate the land, because the soil is fertile and the ground is very valuable for agri- 
cultural purposes. Eight on the very summit of the Santa Cruz Mountains, and be- 
tween San Jose and Vera Cruz, they make the best wine in California, at an elevation 
of from 1,400 to 1,700 feet ; and where the sides of the mountains are cleared off the 
land is very good. A considerable portion of it is now under cultivation. 

Q. What do you think of the timber upon the high Sierras ?— A. The question is, is 
this timber at present accessible to market or likely to become accessible. 

Q. How can the timber be best preserved and utilized by the people ? — A. It appears 
to me that it would be safer to reduce it to private ownership, or have government 
officers take charge of and protect it. I do not know which would be the best, but I 
think one or the other ought to be done. It certainly ought to be preserved. In re- 
ducing it to private ownership you guard against this destruction, and I think I would 
sell it gradually, but not too much at once, or perhaps limit it to 640 or 1,280 acres to 
one purchaser. I do not see the policy of reserving alternate sections. It is very 
important that the timber should be taken care of, because if you allow it to be de- 
stroyed on these mountains you will undoubtedly change the climate very materially. 
A great deal of care ought to be taken of the timber, and therefore I would not part 
with it loosely. I would sell it as the requirements of the country demanded, and. no 
faster. 

Q. You know what we call irrigable land. What disposition would you make of 
that land?— A. I think I would sell it absolutely, and not in very limited quantities. 

Q. Why is that necessary ; why not allow a man to homestead it ? — A. If men home- 
stead it they might be able to combine together and irrigate the land afterwards. It 
will require, in order to carry on a general system of irrigation, that there should be 
a large amount of capital invested ; but if these lands are homesteaded and the water 
secured or held by the government, then you might leave open these lands and the 
settlers could unite together in forming companies of citizens. That would be better 
than giving any corporation of men a large monopoly of land, which is one of the 
greatest valuables in the State. 

Q. You recognize the pasturage lands. What disposition would you make of them? 
— A. I think I would sell them in tracts to be governed by the quality of the pastur- 
age, because in some parts of the State two sections will be sufficient, while in the 
southern part, where the grass is much inferior, probably four sections might have to 
be sold togother. It would depend upon the quality of the grass entirely. Let the 
surveyor report upon the character of the laud and grass, and from that report deter- 
mine whether they should be sold in smaller or larger quantities ; but hardly less than 
two sections would be sufficient under any circumstances. In the southern part of 
the State I think four sections would hardly be sufficient. 

Q. How would water rights be managed in this case f — A. I have not given that 
subject sufficient consideration to be able to give au intelligent opinion, although I 
am favorably impressed with the idea that the government should hold the water 
and make email tracts on the water-courses national reserves. I know that parties 



PUBLIC LANDS. 101 

now take up springs and can thereby control many more acres of land than they own. 
There was one man that had a grant that really covered four leagues, but by the de- 
cision of the commissioners they only gave him two. The grant was described as two 
leagues in length and two leagues in width, and the Mexican Government gave him a 
title, describing it as two leagues in length and two leagues in width and containing 
two square leagues. The Commissioner confirmed the two square leagues and no 
more. I spoke to the owner of the grant, asking him to appeal from that decision j 
but he said, I have the springs and I have the water ; I do not want the other land ; 
I would not pay taxes on it. 

My chief object in coming before the Commission was in regard to the system of 
public surveys. Now, there are certain prices paid per mile which are grossly insuffi- 
cient if the surveyor should do his duty, and he is now prohibited from receiving com- 
pensation from the settlers. He cannot possibly make a proper survey at the price set 
down. On all but plains land the price is $6 per mile, that is, where it is heavily tim- 
bered and mountainous. You go among the mountains, where the land is difficult to 
survey ; you come down to that price of $6, and even at $10 per mile on heavily tim- 
bered land it will not pay if the work has been done properly. The price ought to be 
raised at least 50 per cent., and the surveys would not be desirable at that. Then, in 
addition to that, there are extra duties imposed upon the surveyors that are not re- 
quired by law, and a good many of them it is impossible to perform. The surveyor is 
out on the ground, and he cannot make expenses now. There is not a single deputy 
surveyor who has made anything the past ten years. I am satisfied that they have 
not made an average salary of $100 per month, and most of the best deputies will not 
have anything to do with the work. In that way the old citizens are completely driven 
out and will not have anything to do with the surveys. It is not enough to do what 
is originally required, but extra duty must be imposed upon them. Among other 
things the deputy must take care to report all depredations upon the timber and the 
names of depredators. On page 6 of " Special Instructions to United States Deputy 
Surveyors," by the surveyor-general of California, the following instructions are given: 
"Your special attention is called to the extension of the lines of public surveys from 
south to north, as required by the manual of surveying instructions. No deviation 
will be allowed, and you are hereby notified that a non-compliance therewith will 
cause a rejection of your work. Depredations on timber growing on public lands hav- 
ing been carried on by parties in violation of law, and Congress having provided the 
necessary measures for putting a stop to future unlawful destruction of valuable tim- 
ber on public lands, in obedience to directions from the honorable Commissioner of the 
General Land Office, you are instructed to report any depredations of the kind which 
may come to your knowledge, from personal observation or derived from reliable 
sources. The information should state particular localities where trespass is being or 
has been committed ; the names of parties implicated, and the extent of the depreda- 
tion committed. Each deputy executing contracts for the survey of public lands will 
be required to return with his field-notes a special statement, under oath, that he has 
correctly reported all depredations upon timber growing upon public lands which have 
come to his knowledge, either from personal observation or from reliable sources, and 
that he has used due diligence to ascertain the names and present residence of the 
parties who cut or procured said timber to be cut or carted away, or manufactured the 
same into lumber. Any failure to comply with this requirement will result in with- 
holding approval of the work and of the account of the deputy therefor. Deputy sur- 
veyors are required to give these special instructions their careful attention, and to 
execute their surveys in strict conformity therewith, and they are reminded that by 
the provisions of section 2399 of the Revised Statutes these special instructions are 
made a part of their respective contracts." Now, how can he do that ? 

Again, on page 4 of " Special Instructions " it is stated that, " Desert lands are defined 
by this office to be lands which will not, without irrigation, produce any agricultural 
crops, and which may be reclaimed by irrigation, and for which there is sufficient 
water available. In classing lands under these various heads, the deputy will state 
precisely what are the productions of the soil, both natural and by means of cultiva- 
tion." And, further on, "If the land produces any species of plant naturally during 
either the whole or portions of the year, the fact should be stated." He is only there 
part of the year, how can he tell that? These instructions go on to say: "Deputies 
will also ascertain as nearly as practicable the approximate amount of rainfall, and 
how distributed during the season ; the usual time of the year when different crops are 
planted and matured, which are usually raised in the particular locality" ; and also, 
"Deputy surveyors are prohibited from giving information to any person regarding 
surveys made by them, and are prohibited from charging or receiving moneys or valu- 
ables from settlers or others for work included in their contracts." That is to say, that 
when we establish corners we must not let persons know that the corners are estab- 
lished. I supposed, on the contrary, that deputy surveyors ought to give all the in- 
formation possible in regard to the surveys and the corners established by them. 
Then, there is another thing : when we establish corners we have marks on the stakes 






102 PUBLIC LANDS. 

which indicate precisely what the section or quarter section is, and it is very important 
that those living in the vicinity should know where those corners are. If a man 
knows where his corners are, he is interested in protecting them. If there are fires, 
the people will rush out and protect these corners. 

Q. Give your observation in regard to the permanency of stakes, marks, &c. — A 
Many of those surveys were made twenty years ago, and in surveys that I have made 
nobody knew where the corners were. I had to start north of Sacramento City and 
cut my way south two miles, and then could only make my survey by means of bear- 
ing-trees. The bearing-trees are more important than the stakes. Oak stakes decay 
in six or seven years, redwood stakes will remain for twenty years. Redwood is 
almost imperishable ; it has been known to last in the mission buildings for eighty 
years. 

Q. What would you suggest concerning permanent stakes ?— A. Stakes and mounds 
are now used; but then you have bearing-trees, which are the most important points. 
Where you come to the plains, where mounds are erected — Mr. Day, I think it was, 
testified to the cattle pawing them down. He would go on, and by the time he got a 
few miles away he found that the cattle had torn away those mounds, and thus they 
destroyed the marks of the survey. As fast as he could put the mounds up the cattle 
destroyed them. It ought to be done entirely differently, and the government ought 
to pay for it. This letting it out by contract is pernicious. It can't be done in a 
proper way, because the more miles a contractor runs over the more pay he gets. 
There should be a corps of surveyors selected in regard to qualifications, and not influ- 
enced by politics at all. But as long as we have a contract system, whether we raise 
the price or not, the work will not be faithfully done. There is no question about 
that. When good prices were paid twenty years ago it did not result in good work 
being done. I got a survey more than twenty years ago for a grant, and I had to con- 
nect with the government lines I found the lines, and they had run the government 
lines until they were within six miles of the United States meridian. The surveyor 
had then reported that it was impracticable to make the connection, but there was no 
obstacle in the way. I could go easily the whole six miles, and I connected with the 
United States meridian, but that township was thrown out ; yet the surveyor got his 
pay for it. This survey was one mile out of the way. In going thirty miles in the 
Santa Clara Valley they had got absolutely one mile out of the way. Up in Tahama 
County I made a survey of a Spanish grant, and I tried to connect it, but there was an 
error of more than a quarter of a mile in one of the townships surveyed. The line 
run through the timber for a considerable distance, but there was not a word about 
timber in the field-notes. There was not a bearing tree in the whole line. This was 
in former times, but your testimony will show that there was township after township 
where they really surveyed a little only and reported notes for the whole township. 
There was fraud after fraud, and you will find the evidence in Washington. 

Unless you go into the country and see it, how do you know that they have been 
surveyed at all ? If the deputy surveyors do not inform anybody where the stakes 
are or anything about it, some one would come and say you hadn't made the survey at 
all because they hadn't seen the evidence of it. That is very natural, and yet we are 
prohibited from letting him know anything about it. 

I think the remedy for this is to have a corps of regular salaried surveyors ; and it 
will never be done otherwise than by having a system of salaries. Let permanent 
monuments be placed ; and in regard to the character of survey, instead of restricting 
them to one particular mode, let them do it by triangulation or any other way that is 
the best, and let that be decided by the judgment of the surveyor, who should be a com- 
petent man, and who should understand his business; and let his superiors be men of 
superior qualifications. I think this ought to be insisted upon ; and, above, all, you can't 
have your work done right at the present prices. 

I desire to add just one more word, and that is, I have heard Mr. Redding's state- 
ments concerning debris, and I fully concur in them. 



Testimony of Jerome Madden, agent Southern Pacific Railroad Company at Saeramento, Cal. 

JEROME Madden, land agent of the Southern Pacific Railroad Company, testified at 
San Francisco, Cal., October 10, 1879, as follows: 

Question. Do you recognize the classification of the land I. have mentioned ? If so, 
what system of disposition would be the best for the iuterests of the country and the 
actual settlers? — Answer. The arable lands are all right. The present system of dis- 
posing of them is, in ray opinion, the correct one, except that there are some minor 
disadvantages in the way of delay in the laud office. I believe the general system of 
the United States is adapted to the disposition of its lands, and is a very good one, 






PUBLIC LANDS. 103 

apart from this delay which I have mentioned, and I think it shonld he kept up. 
There is one further exception to this : I have lived in this country a long time— thirty 
years — and I have had a great deal of experience in land matters, and I lind that it is 
one of the weaknesses of human nature that a man will take a false oath quicker ahout 
a piece of land than anything else I know of. Some men, who are good men and good 
citizens, won't hesitate'to take a false oath ahout a piece of land when it adjoins their 
farm. It must he one of the weaknesses of human nature. 

Q. If the government should classify the lands would that avoid the difficulties ? — 
A. Xot altogether. That would he a most excellent thing to do. The government 
should classify these lands as individuals do; hut I had reference more particularly 
to the application of a man. I think that ought to he inquired into; whether it is 
bona fide or not. I do not wish to throw any impediment in the way of a man's ob- 
taining title to the land. No honest man has anything to fear. I would inquire into 
his purpose in getting the land, hut I think the classification would he a most excel- 
lent thing, and I think it would help the government to sell the lands. I think the 
government could charge a better price for the good land, and for the poorer classes 
of land it should charge a less price, so it would end in the same thing. I think after 
a man gets a patent for his land he should have it clear, out and out, from the sur- 
face to the center of the- earth, with everything that it contains. This is the result of 
observation and a good deal of experience, and I am confident this is the best method. 
He either is or he is not entitled to the land, and I would give him a clear title to it or 
none at all. 

Q. How would you regulate the disposal of the timber lands ? — A. The timber lands 
should be talked about a great deal. After thirty years' residence in California, after 
having heard a great deal about timber countries, I do not think that I ever read of 
such deplorable waste. Such a deplorable, foolish, profitless waste of timber as there 
has been in California has never before been known in the world. Every person has 
had an opportunity to get in and slash down timber right and left. There does not 
seem to have been "any care taken of it by the government at all ; on the contrary, they 
have looked on with apathy. Every person thinks he has a right to come in and cut 
down, for a whim, the finest sugar-pine that can be found in the mountains. I have 
seen them do it to try an ax or to get out 4 feet of a butt. I have seen them cut 
down a magnificent tree, 300 feet high, and leave it to waste there and dry and rot 
to feed the forest fires. If you remonstrate with them about it, in some instances it 
will be as much as your life is worth. Miners and other persons have cut it down for 
purposes they thought it was needed for, when it was not needed at all. Men come 
in and strip off the bark and leave the tree to die ; men come in and tap the trees for the 
turpentine, and after ten or twelve tappings the trees are fit for nothing. They do it 
for a small compensation, at a terrible loss to the government, and there has been a 
deplorable, not to say a criminal, neglect on the part of the government and this State 
in this matter. 

Sometimes, when reflecting on this, I have thought of the stripping of the country 
the watershed of which flows into the Mediterranean Sea — the barbarous States of 
Morocco, Algeria, Tunis, and Tripoli, and along there, which lie in the same latitude as 
California— I remember reading of old times, in the histories of the Carthagenians 
and Eomans, that these places were covered with timber, and supported a very large 
population, five times more than at present, and this alteration was in consequence of 
and resulted from the destruction of the timber. They destroyed it, so that now it is 
a barren waste, supporting only one-fifth of the number of persons that it formerly did, 
and they only find a scanty living where formerly five times their number could get a 
living. 

I was thinking that California, a most excellent country, with its gold and silver 
and quicksilver, wheat, wine, oils, fruits, and grapes of every description, I think it 
is worth saving ; that all of us here will pass away in a very short time, but our chil- 
dren will live after us, and if things go on as they are at present we will have the same 
condition of affairs as those persons of whom I spoke have at the present time. Instead 
of having trees which will protect the moisture and retain it they will have a dry, 
sterile country, which, instead of being a large and prosperous State, will be but an 
insignificant one. I would get men to preserve this timber ; I think it is worth it, and I 
think that the getting of foresters or protectors for it is one of the factors in its preser- 
vation. It is true, apparently, that the timber costs but little at this present time ; 
but the hiring of men to protect it is money well spent in a small way to save a large 
amount. Even if it costs a large amount I would consider that the expenditure of 
the money would be the greatest economy in the end. I would have this timber all 
surveyed, so that a person who wanted the timber land could have it in reasonable 
quantities for legitimate purposes. I would try to do the best I could for the people 
who reside here. I should be in favor of giving every person a piece of timber land 
to get wood and timber, within reasonable bounds, for legitimate uses ; and I would 
prevent anything like waste or destruction. I would make laws very stringent if I 
could, and I would make it obligatory upon persons who destroy timber to replace it 



104 PUBLIC LANDS. 

in some way. Over on the Sierra Nevada they have a western slope about 65 miles— 
that is to say, the Sierra Nevada Mountains are practically 450 miles long, and at the 
base, beginning at an altitude of 300 feet, across to the base of the Sierra Nevadas r 
it would be 70 miles wide to the other side, where it goes into the other basin. The 
largest portion of the timber is there. I would see that the young trees are pro- 
tected and that others are planted. I think in that way you will keep a prosperous 
State. I think that timber land should be held by private persons unless they are 
properly protected by the government. That would be the best way to protect them. 
If I wanted to go into the lumber business I think I ought to have enough timber land, 
so that it would be an object to expend necessary capital. One hundred and sixty 
acres or three hundred and twenty acres would be no use ; it would depend, however, 
upon the thickness of the timber. 

Q. Why is the expense necessary for timber enterprises so great ? — A. In the first place 
labor here is very high, and in the next place machinery costs a great deal; then there 
is the investment in the timber land, and, taken with the teams and everything else 
which will be necessary for the proper outfit, it amounts to a very considerable sum, 
and no poor man can go into it. In the Eastern States a man puts up a saw-mill, where 
labor is cheap, and where you can have plenty of coal, and all that sort of thing quite 
cheaply ; but you cannot put up a saw-mill at an insignificant expense out here. In 
the East the timber lands, or a great many of them, are accessible. You do not have 
to go into the mountains for them. Here you have timber lands on the sides of the 
mountains, and you have to go to a great deal of trouble to get out the timber. In the 
East, in Canada and New York State, they cut it in the winter time and float it down 
the streams, but you cannot do that here. The profits derived from cutting and man- 
ufacturing the timber upon 320 acres of land would not generally be of any use ; it would 
depend, however, upon the character of the timber and the character of the country. 
The timber on the high mountains must be cut down, and it requires a vast expense to 
do it. Timber is sometimes floated fifty or sixty miles in flumes. The quantity of tim- 
ber land which will be necessary for a mill would differ in different localities. In one 
place it might be necessary to have a large quantity of land, while in another place a 
small quantity of land would be sufficient. No man will go in and locate a saw-mill on 
640 acres of land if the timber is standing thin ; but if it is standing thick he might be 
induced to do it. This question of topography controls him to some extent. I would 
survey thetimber tracts on the mountains with regard to the topography; that is, to 
the quantity of timber to the acre. I would have a sort of elastic system. Around a 
mining camp the trees are all cut down ; there is no regard for them ; there is nothing 
in the way of protection. People in California have got an idea that there is no owner- 
ship to the timber lands, and when a man takes up a mine he takes the finest timber 
upon it, without any return at all, and keeps what we call a shot-gun possession of it. 
If a man goes to jump his claim he will run him off; so that I think as soon as a min- 
ing camp is located the best thing for the United States to do would be to sell the tim- 
ber immediately, because if this is not done it will be taken any way. There is some 
destruction of timber by goats and sheep. There is a great quantity of Angora goats 
.n the foot-hills, and they destroy the young trees that are coming up. I am not very 
much acquainted with this, personally, but I am told so. 

Q. Would any protection for the timber be sanctioned by the people in the courts ? — 
A. As it is at present, I do not think it would. It would be an impossibility to convict 
a man in California of any crime in connection with cutting the timber. It will be 
best to have convenient facilities for purchasing. If you go to interfere, they say : 
this land does not belong to you ; it belongs to the United States, and if you inform on 
me, and take me before the United States commissioner, there will be nothing done in 
the matter. 

The more you create ownership interests in timber, the more you create a sentiment 
in favor of protecting it. Until you create a sentiment, it is almost impossible to affect 
the amount of depredation upon the timber. I know regions where there was beauti- 
ful nut-pine, and now there is not a tree there. The reduction of the timber lands 
into private ownership would be the readiest method of producing a sentiment in favor 
of protecting the timber. 

I think the United States and the State of California should encourage the replac- 
ing of these forests. Every man will protect his own interests, and he will be very 
careful, for instance, that I should not cut down his trees without paying him for them. 
If a man has an interest in the soil, he will see that pine trees are growing there, and 
he will protect them. I do not think that the owner will cut the timber, and even if 
he did destroy it, he would be doing it by right and not in violation of law. If in the 
hands of private owners it would bring in a revenue to the government or the State, 
and it would stop the lawless destruction of timber by non-owners. 

Q. How would you dispose of the irrigable land?— A. There are, in California, vast 
tracts of land that are not arable. Some lie in the extreme northern part of the State, 
in the Klamath Basin, and some lie about Honey Lake, and in that California district, 
and some lie in the central valley of California south of Stockton, and away on down 






PUBLIC LANDS. 105 

to the San Joaquin and Tulare Valleys. Some also are in the Mojave Desert and in the 
Colorado Desert. I think there is ample means of irrigating all this land under a wise 
and judicious system of irrigation. 

I called attention awhile ago to the question of the watershed of the Sierra Nevadas, 
and also to the fact that the watershed slopes for some sixty-five miles to the west, 
taking almost all the moisture that comes from the Pacific Ocean. I think that the 
water and land should go together if possible. I think that every man, if he could, 
should have his own ditch for irrigation ; but as that seems to be impossible and imprac- 
ticable in a great many instances, I think that the federal government in conjunction 
with the State, or the State in conjunction with the federal government, should devise, 
under scientific management, a system that would answer the wants of the present 
population ; and that system of irrigation, by a series of reservoirs in the mountains 
and that sort of thing which can be easily done, should be taken so much care of at 
the commencement that the future interests of population as it increased would only 
require the enlargement of this commencement. Then I think that anybody who 
wanted a certain tract of land should have not only the right but the inalienable right 
to his proportion of water. I think that a stringent law should be passed in regard to 
the distribution and administration of this thing, and that there should be no chance 
for discrimination or anything of that kind. Everybody should have a free, equal, 
and just chance. I think that the State (or the United States) should fix the tariff on 
the water ; but if the United States or the State of California did not wish to do any- 
thing of that kind, or will not do it (though if they can encourage it it will be a most 
excellent thing), then, if neither of them will do it, I think that the aid of private 
enterprise should be called in, and the person investing his money in irrigation works 
should be controlled by the laws of the State, and a person should be appointed by 
the State, with assistants to be appointed by him, who should have charge of the dis- 
tribution of the water, and the management and distribution of it should be taken 
out of the hands of the owner of the irrigation work ; so that in seasons of drought 
and short supplies of water the owner might get rid of the arduous task of discrim- 
inating between individuals. 

In regard to the farmers, a great deal has been said about associations of capital 
and labor, &c. I notice that because it was done in the mines in the early days it is 
now said that it could be done also by combinations of agriculturists. I think the 
person advancing that proposition is mistaken. In the Sacramento Valley there is 
about 30,000 square miles of level land, and there are 450 miles of water- shed by 60 
miles wide, and there is certainly enough water in that space to irrigate to the hills 
east of the Sacramento River. It may be a question whether the streams of the coast 
range will irrigate the western side. I think if a certain tract of country which would 
be controlled by a certain stream should be laid off. into a class by the government as 
"irrigable land," it would be a good idea for the government or the State to take 
charge of the distribution of the water and pass stringent laws for the administration 
and distribution of it. It would be a policy that would work well. In that case I 
think a smaller amount of land would do for a homestead than is given under the 
present system. 

As location is practiced in the State at the present time it seems to me in a measure 
inoperative. I will illustrate it in this way : If my farm is on a stream and I make an 
appropriation of the water for the purpose of irrigating this farm, and another gentle- 
man wishes to locate a larger tract above me and wishes to take out all the water in 
the stream, he thus utilizing all the water of the stream, I, who made my location in a 
bad place, by my obstinacy and selfishness spoil all the effect of this latter location, 
and because I won't yield the water the whole thing goes to waste ; whereas if it was 
taken out on a proper place all the land on the river could be utilized ; and so I think 
that the farmers or association of farmers cannot do this thing. There will be con- 
tention all the time and personal difficulties. There are large valleys in the Sierra 
Nevada Mountains that are not now fit for anything at all, where, by appropriate en- 
gineering, there could be water enough stored in one year to irrigate the whole dis- 
trict. And it will have this further effect, too, upon the floods and dry years in Cali- 
fornia : In the years of floods all these men who have swamp land are flooded out ; in 
the dry years persons who own the uplands are starved out. Now, by making a system 
of reservoirs, w r here these waters could be collected and stopped, it would prevent dis- 
astrous floods upon tho swamp lands, giving toe dry land sufficient water at all times. 
This thing could commence now, to meet the wants of the comparatively few who are 
upon that character of land, and as time advances and population increases here these 
things could be enlarged. It would take probably fifty years, may be a hundred years, 
to complete them. This is done in Spain, and the production has increased twentv- 
fold. 

Q. Will any difficulties be encountered by reason of vested rights in the spots where 
the water should be stored ? — A. Yes, sir ; there are vested rights. The water has 
been monopolized, and it has been truly said that water is the basis of the wealth of 



106 PUBLIC LANDS. 

California. The water is all being taken up ; irrigation works, as a general tiling, are 
not very productive to the individual who invests in them. 

Professor Davidson estimated some years ago that it would cost five or ten dollars 
per acre to irrigate the Tulare Valley. I think I heard Mr. Haggin say that it costs 
a million and a half of dollars to bring in the water in his locality. I think he has 
redeemed something like 300,000 acres. Then there is, in addition to that, the cost 
of the land. It costs about five to ten dollars per acre for canals and distributing 
ditches. 

The Congress of the United States passed an act, called the " desert land act," which 
was intended to reclaim some of this desert land ; but in the way in which it is worded 
it seems it is inoperative. I think it could, measurably, have accomplished the pur- 
pose intended under a liberal interpretation of the law, but in the way in which it is 
administered it does not amount to anything at all. In those places which I have de- 
scribed, and on which there is no water, under this act you have a right to take up 
640 acres of land — in Tulare Valley, say. The land is good enough if you can get 
water there. There are two methods of getting the water : one by bringing it from 
the mountains, the other by sinking artesian wells. You are called upon to pay 25 
cents per acre in order to be permitted to file on the land. Then you have got to go 
off twenty-five miles to have "the water brought on the land. Then, possibly, you have 
to buy out the water rights of those who have appropriated the water, and go to the 
expense of building ditches, &c. Now, taking into consideration the evaporation of 
the canals, you have got to have a pretty large head of water before you can use any 
of it on your 640 acres. Thus you get 640 acres that cost something like eight or ten 
or twenty dollars, or perhaps fifty dollars, more than the land is worth. But it does 
not end there : the Commissioner of the General Land Office in his instructions to reg- 
isters and receivers says if I pay 25 cents that the rights I. have acquired in the land 
are not assignable : therefore there can never be any association of capital. 

The Land Office in Washington thus goes to work and throws an impediment in 
your way by saying it is not desert land at all, and you shall not have it until you 
have proved it ibo be such. You have to get two men to go to the register and receiver 
and swear that it is desert land and that you cannot raise crops on it without irriga- 
tion. Then the register and receiver may have some objections, and you do not get 
your title. Then the government may come along and say it is not desert land, and 
you will have a contest ; and, finally, another man may come in and take the land 
under the homestead or pre-emption act. You say to the government, take back the 
land and give me my money. The government officers say, ' f You have paid in your 
money, and you cannot have it back." Generally the fact that the land is irrigated 
should be sufficient to prove that it is desert land and requires irrigation. I believe 
that the really irrigable land should be sold in tracts of 40, 80, or 160 acres, at such a 
price as might be deemed best, and I think the certainty of water should go with the 
land, in proportion to the amount of land that is sold. 

If the government should go into the irrigation business itself, it would be better. 
I think the State or federal government should have control of the water. If it goes 
into the hands of private individuals, I think the government should still retain con- 
trol of it, so that there will be no unjust distribution of the water. If the government 
does not take control of it, it may be well to sell it in such tracts as persons might 
desire, compelling them, after the water was taken out, to sell the land to parties 
desiring to purchase. If the government could not do it, then it would be a better 
way to get it into the hands of private individuals, allowing them to reclaim it, and 
then compel the companies or individuals to sell it in small quantities to satisfy set- 
tlers ; but I think there should also be stringent laws about keeping the control and 
distribution of the water in the bauds of the government. I think the water ought to 
inhere in the land. I should want it so fixed that there could be no injustice done in 
the matter of water. 

Q. So large a portion of the people are opposed to making it a subject for internal 
improvement, and it not being the genius of this country to favor such a system, and 
the State not caring to enter into any such enterprise, and it being desirable upon the 
part of the government that the country should be settled up and occupied and these 
lands sold, by what system would you induce capitalists to invest $150,000 to put in 
dams and take out the water, so that the greatest good should be done, and they feel 
safe in their investment?— A. I would allow the people to go and select these lands 
and take them at private entry, and give them a lull and square title at ouce. There 
are lands in the Tulare Valley that havo been surveyed for twenty years, and are still 
unoccupied. You can go forty miles and not see an inhabitant. No one wants to go in 
and reclaim that, and it is absolutely useless as it is. 1 would make it wort h while for 
capitalists to take hold of that land and reclaim the remaining portion of it. Yet in 
doing that it should be so arranged that they should bo compelled to sell the land to 
actual settlers after the water had been taken out of tho rivers and put upon it. These 
lands are like squares on a checker-board ; no man wishes to go in and reclaim any land 



PUBLIC LANDS. 107 

would be reclaiming the land of other people. I should so fix it that he could get all 
his land together. There is no danger of this land remaining in large tracts in the 
hands of corporations or associations. The corporations would fintt their greatest profit 
in dividing the lands up and selling them. With water on these lands and the lands 
made irrigable, the value would be raised so high and the taxation would be so exces- 
sive that they could not afford to hold them ; and, in the next place, if a man had 
money enough to hold them for any length of time, after he was gone the land would 
be subdivided. If persons went into this business, they would do so for the purpose 
of making money, and that money could best be made by selling the land. A man can 
profitably work by his own labor but ten acres of land, if it is not in grain. If it was 
in anything else, say in fruit, he could not work 10 acres. No individual could work 
160 acres. 

Q. What have you to say about the pasturage lands? — A. I concur fully with the 
testimony of Mr. Boggs. I think the pasturage lands should be surveyed with refer- 
ence to the water. 

In the State of California, there has been a great deal of injustice done to the peo- 
ple at large by holding the water separate from the land. Here is a spring, or a swamp, 
or a run. I go into the land office and buy that, by filing a declaratory statement, 
taking up a homestead. I take it up and fence it. Now, here are thousands of acres 
of land near it that are rendered valueless, because I have the only 40 acres in the vicinity 
that contains the water, and the consequence is that I have the control and benefit of 
all that for nothing, and without paying any taxes. I would fix it so that this land 
should be surveyed with reference to the water. I would give a man enough to make 
a living on, and would make that water wholly free to all within reasonable limits. 
I would not let him be destroyed if he had only water enough for 100 head of stock. 
I would let him keep all that water, but if he had water more than enough for a hun- 
dred head, I would make him divide with others who needed it. The only true way of 
disposing of these lands is to divide up the water proportionately to the laud. There 
are many places where there are valuable lands, and I have known persons who would 
take up the lands along the streams, and when I or any other man came along to take 
up part of that land, I could not do so, because it is all practically taken up by the 
man who controls the water. I would compel him to put lanes through his lands, so 
that other persons could use that water within reasonable limits. If there are any 
valuable mines upon that land, I would give persons the right to prospect and work 
them. And I would reserve, in selling the land, all the subterranean rights. Each 
pasturage farm should have a little tract of irrigable land upon it, on which a man 
could locate his home and raise a small amount of grain, to protect him against dry 
seasons. If it were possible I think it would be well to have pasturage communities 
about the water courses, in order that they might establish schools, churches, &c, 
and form intelligent communities. The foot-hill region I left out. There is in Cal- 
ifornia a region called the foot-hills that reach all the way from this 300-foot elevation 
of which I spoke awhile ago away up to an altitude something like 2,000 and sometimes 
3,000 and more feet, where the oak and nut-pine grow. There are, in these places, some 
of the finest lands in the world, and my opinion is that in time to come all the respect- 
able farmers of California will live in the foot-hills, and I believe in time to come 
that the finest spots and the finest homes will be in these foot-hills. They are close 
to wood and water ; they have a diversity of scenery ; the conditions are more health- 
ful than in the valleys, and then, too, a greater variety of farm products and fruits are 
grown there than anywhere else. You can grow fruits there that you cannot grow 
where it is warmer, because the warm air of the valleys will rise to that level, and 
things that would freeze in the valleys would not freeze there. These lands cannot 
be had by monopolists, because they are too remote and too scattered. It is the duty 
of the government to survey these places immediately, when they will probably be 
irrigated. Right in each of these valleys there is sufficient water to develop them, 
and they should be surveyed. It may be necessary to make a geodetic survey instead 
of the rectangular one. and, if necessary, they should do it. That country is not 
densely settled up, because you do jiot give them titles. Another thing, most of it 
is reserved as mineral. I do not think that agricultural lands ought to be set aside as 
mineral. 'When a man comes and locates on these lands, and just when he has the 
water going nicely on what is really agricultural land, some miner will come along 
and declare that it is mineral land, and, as the burden of proof is on the agriculturist, 
he can blackmail the owner of it for one or two hundred dollars. 

Where the government gives a man title to small tracts in the mountains, I think 
he should have a clean title from the surface to the center of the earth. When you 
give a man a title to these large tracts of pasturage land or mineral land, I would re- 
serve the subterranean mineral rights. In surveying the land I would take the topog- 
raphy of the ground and also the quality of the soil, the kind of soil, &c, and all that 
kind of thing, in a more thorough manner than it is being done at the present time. 
I would make a thorough physical survey, more especially of the water. If it was 
found out that the stakes of the surveyor were not firmly fixed and substantial, I would 



108 PUBLIC LANDS. 

make him amenable for it. If the geodetic points were established you could then 
survey isolated tracts accurately without going all over the country. 

I desire to say another word. Within the limits of the railroad grants there is a 
great deal of land that is entirely pasturage, and I find it is very hard to dispose of it 
for the reason that the land is controlled in connection with the water. Sometimes 
you find a spring on a railroad section, and sometimes you find it on the adjoining even- 
numbered section, which belongs to the government. If it is on the even-numbered 
section, a person goes into the land office and gets title to 40 acres of it on which the 
spring heads. If he finds the spring is on the railroad land, he will go in and buy the 
tract upon which the spring is located. From experience, I find they do not take the 
remainder of the section on which the stream or spring was found. I found, after 
awhile, that if I sold that part of a section with the water on it I could not sell the 
remainder of the section on which it was situated, so I generally say I won't sell the 
land on which that spring is located unless you take the whole section. I think the 
land should be sold in blocks or strips, paying especial and particular reference to the 
water on them, and that a piece of agricultural land should go with the pasturage 
land. Where you have a government section intervening between two railroad sec- 
tions, or a railroad section intervening between two government sections, you cannot 
make what they call here a ranch. 

I think it would be wiser on the part of the United States to make some arrange- 
ment which would be mutually agreeable, so that there might be a fair interchange 
of the odd-numbered sections and the even-numbered sections, so that the government 
land should lie in a block or strip and the railroad lands in a block or strip. Then 
they could be sold out in tracts suitable for ranches. So far as the purely arable or 
agricultural lands are concerned, under ordinary circumstances this block system would 
seem to be all right ; but I find many persons coming to me, some of them represent- 
ing people in England, France, and Germany, and some from the Eastern States, who 
wish to emigrate to California — they say, " we want some twelve or fifteen thousand 
acres of land ; have you such for sale ?" 

"Yes." 

" Where are all these lands ?" 

I will then designate some certain locality. 

They say : " Haven't you a body of land of those dimensions in one tract ? " 

" No ; there are intervening even numbered sections." 

" But you cannot acquire title to them except by pre-emption and homestead." 

" No ; but the persons you bring with you, if they are citizens, can have the benefit 
of the pre-emption act ; they can pre-empt or homestead the government lands, and 
the railroad company will sell you the odd sections at a moderate price." 

"Oh, no! that won't do at all, for they are foreigners; they cannot take up the 
land." 

So I think that inland of that character an exchange would be beneficial, both to 
the government and the railroad company. It destroys the sale of the lands and pre- 
vents their disposal in that way. You cannot prevent persons from getting large tracts 
of land, even if you want to. If you look back at the older settled places, you will 
find single owners in possession of larger tracts of land than are embraced in these 
farms in California; but if these lands in California were surveyed properly, and the 
ownership put somewhere, there would be a fixed interest. They could not afford to 
keep them for an unlimited time. 

Suppose I have got a very large farm ; when I die, in the absence of any law of 
entail, it would be divided up and go to my children and heirs. I think, with regard 
to the lands of which I spoke, and the land which the desert act was intended to 
cover, that somethingshould be done with them, lor as it is at present they are entirely 
useless. Either the government should take back the railroad sections or it should 
give one tract to the railroad company and take the corresponding tract, making 
an equal divisiou ; or it should be divided up into blocks, or else the government should 
take control of the whole thing and sell it out, giving the railroad company credit for 
its lands. I wish it to be understood always that great care should be exercised con- 
cerning the water, and that all persons should have access to the water where it is in 
large quantities. Roads, lanes, &c, should be made through it that would be free to 
all, and the water should be considered common property. I have seen thousands and 
thousands of acres which are controlled by one pool of water, and the man who bought 
that water paid the government only a hundred dollars for it. He got one of his 
herders to live there during the time required by law, and then, as there is no water any- 
where around there, he has the pasturage of all those hills and plains. No person can 
use the water but he, and he would not allow any one to come and take it. If that 
water right was divided up it could be utilized by many families. I think the lands 
should be parceled out in proportion to the water. If it was capable of watering one 
hundred head of stock, then let the spring go with a range large enough for one hun- 
dred head of cattle ; if it was capable of watering a million head of cattle, I would 
then divide up the land necessary for that man's stock in such a way that all the stock 



PUBLIC LANDS. 109 

using it could have part of the water. I think that the true prosperity of the country 
consists in having the land divided up into small farms and held by a great number 
of persons; as it is in France, for instance. 

There have been a great many land grants in California, and, as a matter of course, 
the persons who selected the land did not select the worst, but always the best ; and 
the boundaries in early days were so indefinite and the papers were drawn so loosely 
that it was impossible to tell where the actual boundaries are or were at that time. 
Sometimes they would sell a tract of country which would contain three or four times 
the land grant, and so it happened that persons claiming a Spanish grant would take 
the benefit of the description and exclude other persons within the boundaries desig- 
nated in that grant. A man would have a grant of 3 square leagues, but the descrip- 
tion would contain 12 square leagues, and the man would have the use not only of the 
3 leagues that were granted to him, but also the use of the other 9 leagues contained 
in the description, thus keeping settlers off from these land grants, which are usually 
of the very best quality. Now, I think these should be settled up immediately. I 
would not take from any man that which legitimately belongs to him, but I think his 
possessions ought to be segregated from the public domain very quickly and the other 
lands thrown open to settlement. They will assert that they have a right to hold all 
the land named in their description ; and they used to sell off at high prices large 
tracts of land within these boundaries. Afterwards, when the survey was made, it 
would be found that these lands were entirely outside, and that really they had been 
selling land that did not belong to them, but to the United States ; and the United 
States had so much sympathy for the persons who bought these supposed private 
lands that it passed an act giving to those who had bought in good faith the right to 
come in and take up these lands on the same ground as a pre-emptor. 

Q. When a grant is stated to be within certain boundaries, which are described, 
does the grant as finally confirmed include only the ground stated, or does it include 
the whole area within the boundary stated? — A. In some cases it probably only in- 
cludes the area stated in the grant ; in some other cases it takes in a great deal more 
than the area stated. These boundaries are usually indefinite, and it is left for the 
owner to assert where the boundaries are, and the land within these limits is retained 
until final segregation. 

Q. Can you suggest a plausible remedy ? — A. This can be remedied by a provision 
for their immediate survey. . Of course it cannot be done altogether, but it could be 
done in a very short time. If the law of 1866 was enforced it could be done in that 
way. That law provides for a compulsory segregation ; and if that should be deemed 
inoperative a supplementary act should be passed which would meet the case exactly. 
It is an outrage upon the people of the State, and it is bad business on the part of the 
government, to allow that state of things to exist. There are very fine tracts of land 
withheld from settlement in that way. If a man has a legitimate claim, give it to 
him, but let it be determined immediately where that claim is, and then do not allow 
him to keep the land that he does not own. The government should make these sur- 
veys and keep the cost as a lien on the property, if the persons owning it are not will- 
ing to bear the expense. Of course it is to the interest of the grantee to keep off sur- 
veys, because he can then hold more land than he is really entitled to. In such case 
the government should go to work, survey it, and make the owner pay for it. 

Q. Does not the law of 1866, if properly carried into effect by the officers of the 
United States, compel the survey of Spanish grants, if parties do not apply for the 
survey within ten months after pre-emption ? — A. It does, but there are many laws 
that are void by non-user. The fault lies with the government and its officers. I 
think that the government does not pay sufficient attention to the matter. 

In the next place, I think that, owing to the tenure of office in this country, there 
is not as much interest taken in public affairs as there would otherwise be under dif- 
ferent methods. It could be done under the act of 1866, but I would have an addi- 
tional act ordering the surveyor-general to do it, and I would have a commission organ- 
ized for that purpose to settle all the grants in the States and Territories. 

If there was a commission invested with the powers, and an appropriation by the 
general government made, to prepare a law compelling this thing to be done, I think 
it could be done properly, and I think it is to the interest of the people of the United 
States that it should be done. 

In reference to the mining law, I desire to say that I think this idea of allowing 
a man to go in and make affidavit that a whole tract of country is mineral is wrong. 
There are a great many persons who for their own selfish purposes make these affi- 
davits, under which much land in the mountains is excluded from settlement, and 
then they occupy them too. There are persons who wish to use these lands for 
grazing, and, in order to accomplish that without any expense to themselves, they 
make oath that it is mineral land. 



110 PUBLIC LANDS. 

lestimony of William Magee, deputy mineral surveyor, Shasta, Col. 

William Magee, deputy mineral surveyor, testified at Shasta, Cal., October 2, 1879, 
as follows : 

I have been connected with the public service in this county for twenty-five years 
as a mineral surveyor. I was the first deputy appointed in the county, and have been 
in that capacity every since. I connect my mineral surveys with the government sur- 
veys, or with the mineral monument when the surveys are not within proper distance of 
already established corners. There are mineral monuments erected in this district but 
they are temporary ones. I generally establish an iron bar and put a rock mound around it 
to make it more permanent than corners are generally made, and that is about the amount 
of it. I establish the location of that mineral monument by connecting it with the 
forks of the nearest streams, water-courses, or some prominent mountain point, and 
establishing a bearing tree. That is the only way that has ever been done by me. 

Question. So that if the stream changed its course or if the tree were cut down you 
have lost your location ? — Answer. The tree might be cut down, the stone removed, 
the stream change its course, and means of relocating the true boundaries of a min- 
eral claim lost, but it is not likely that all these things would occur. Mineral monu- 
ments might be established more permanently so that they would not be likely to be 
removed, but the best way to my knowledge would be to identify them with a govern- 
ment survey whenever it is practicable. I hardly know of a mining district in this 
county where they could not be so connected. We are now limited to a hundred 
chains. The location of these mineral monuments is made at the expense of the claim- 
ant, and of course, having mineral monuments more permanent, would make the sur- 
vey more expensive. 

Q. In locating mineral monuments from the confluence of streams or from some 
mountain tops, do you really gain anything from the taking of such an indefinite 
object as a mountain summit as a monument '?— A. I think on the whole you can. It 
is a large object, but a very permanent one. Such distances are at best indefinite 
things. Then you put your instrument upon a mountain head, you will determine 
that you are pointing right at the top of the mountain, and another surveyor will 
point his instrument several degrees away. I think it is a very vague kind of monu- 
ment. Then, too, the forks of streams often change. I have seen it often myself, 
and I regard an artificial monument carefully erected as a better mark. The location 
of the monument is taken from the confluence of these streams and trees. I look 
upon a connection with a good surveying corner as beicg better than these things, 
better than the mineral monuments, and better than the fork or bed of streams or the 
top of the mountain. The latter I look upon as a very vague mark indeed. No two 
surveyors would hardly ever agree upon the same point. I would have the monument 
erected at some convenient point and where there are several claims to be connected 
by one monument. I have run to connect with the mineral monument as much as 
sixty chains, and when I was locating several connections with the same mouument 
in running from the monument to the claim I run simply by the needle and chain. 
That is generally the way I run all claims. I use the needle instrument altogether. 

Q. So that if there is any error in your variation or any error in your chaining the 
location of the claim may be all out ? — A. There is always error in chaining. There is 
not always any change in the variation of the needle. Variations of the needle occur 
more frequently in some places in these mountains than in others. There is several 
minutes variation, but the chain in this rough country varies more. I am generally 
particular to triangulate to a corner whenever I can. I think it is more accurate than 
chaining. If I chain I do both. If a system of permanent mineral monuments were 
established over a region and you locate claims by them, I think you could locate such 
claims very accurately. There need be no difference to the locator of the mining claim. 
Sometimes it would cost a deputy a few dollars more or less to do the work, which will 
amount to a mere nothing in the aggregate. If the government establish the mineral 
monuments, it would be less expensive to claimants and deputies and more perma- 
nent, and if it established the location of such monuments by correct observation, so 
that if they were removed they could be replaced, it would be much better, especially 
if they established several monuments within view of each other and connected the 
mineral claims with them. I think that would be decidedly better than to establish 
a monument for every claim. Then if one of the objects were destroyed it could be 
replaced by running from another one. The expense of establishing such monuments 
would be very trilling for the government. A deputy could establish all the neces- 
sary monuments on prominent points in this county by triangulation very simply, and 
it would cost very little to do it. 

Q. Where you have a number of claims adjacent to or overlapping each other, and 
one of' them has been surveyed, do you, as a matter of tact, generally locate the later 
claims from the location of the first one? — A. Yes, sir. 

Q. So that if the location of the first was incorrect, it would necessarily follow that 
all would be out of place ?— A. Yes, sir; to a certain extent it would. 



PUBLIC LANDS. Ill 

Q. Could you not connect your mineral monuments with the township corner to estab- 
lish your mineral claim ? If your township corners should be obliterated, cannot they 
readily be re-established again ? — A. They do very often get obliterated in this coun- 
try, and I was at first very much put out by that fact until I 'became familiar with 
surveys here. When I first commenced examining the corners made a few years be- 
fore, I found them obliterated and it was difficult to determine precisely where they 
were. I had to run lines to re-establish them. I thought then it was the fault of the 
deputy who had established them, but afterward I found that it was due to the de- 
struction of the monuments from natural causes. I have found by experience that 
monuments made on gravel hills and on certain kinds of ground frequented by hogs 
are not at all permanent ; frequently the hogs will root under them, tear them down, 
arid scatter them for a grass or root that grows there. I found that to be the reason 
from my own experience. The hogs will destroy a rock monument in one or two or 
three years. The only thing that makes a permanent corner is a bearing tree. When 
the marks of a corner are obliterated you have no absolute certainty of being able to 
re-establish the same point if the bearing trees have been cut down or cut up. I can 
show corners established by two different surveys that are 14 rods apart where the 
corners and landmarks have been obliterated. 

Q. Suppose you bring two sets of surveys from opposite corners ; do you or do you 
not know of any instance where you can connect these, where they come well to- 
gether? — A. I have known one or two instances ; but where there is one instance where 
it will do it I have seen a dozen where it will not. 

Q. Can you suggest any better way for establishing the corners of a government 
survey ?— A. No, sir ; I don't think that I can suggest any better way, except by be- 
ing very particular in establishing with great permanency the corners, and establish- 
ing many bearing trees wherever it is possible to do so. They are the most permanent 
marks. I have known instances after a survey where they were all cut down, but it 
is very seldom the case. You can most generally find one or two, if not all. They are 
the most certain landmarks. I think they may be considered decidedly the best mon- 
uments. If you do not have a corner, they are the best monuments that can be sug- 
gested ; they rarely fail. I do not know of more than two or three instances but 
where you can find one or more, and any one of them is enough to establish a corner 
from. 

Q. What do you think of the propriety of abolishing all local laws and customs and 
obliging a parry seeking to record a mineral claim to commence in the United States 
Land Office with an official survey in the' first instance? — A. Do you allude to unsur- 
veyed ground, or where a government survey has been already extended over it ? 

Q. Either. — A. In other words, make the claim legal through a government survey. 
It has always been my opinion that that would be a proper way, and that they should 
not get a title in any other way. In many counties there are no records of mining 
districts. In 1887 we could not find a scratch of a pen on that subject in this county. 
I have frequently had trouble about mining records, and I have frequently been con- 
sulted about them, and have been in the habit of making the record from my data 
and the man interested would take it to the record office and would bring it back to 
me. There is no such thing as a record of location except in a few instances where 
they have been made with the county recorder, but I do not know of a single mining 
district in this county where there is a record except very recently. Records are now 
made by miners, who are required to furnish a copy from the mining record, and they 
have in every single instance to be made new where they are called for. I have not 
been able to find many able to produce one, and I am spoken to almost every day 
about manufacturing records of this sort. A man is not able to describe a claim the 
way he wants to make his record, and sometimes I make a preliminary survey and by 
ray preliminary survey the record is made. Afterward I make a legal survey by the 
record originating with myself. That is true with claims that have been worked suc- 
cessfully twenty-five years, and there is nothing unusual about that thing ; it is fre- 
quently done. The mining records heretofore made, if any of them have been pre- 
served, are of no value ; it would not do to respect them. There is not one of those 
old records that describes the ground the claimant now wants to take up. He wants 
to change it in some point to suit himself, so that the location he makes now will not 
be the one he originally claimed. Where there is no conflict in the claim, I look 
upon it that there is no wrong done any one in changing it. It is all government 
land, and if there is no other claim conflicting I do not see any harm in it. 

Q. Supposing that controversies had arisen between these parties who had new loca- 
tions and others, how would that conflict be settled ? — A. They would have to go into 
the courts and adjust them in some way that would suit themselves, and each one 
would have to make the best showing he could by parol testimony. I am telling you 
about the situation of those district records in this county. So far as I have had any 
knowledge of them, they have become obliterated and laid aside. 

Q. Is there at any time any guarantee as to the integrity or protection of these rec- 
ords except the personal honesty of the recorder? — A. None that I know of. He is 



112 



PUBLIC LANDS. 



under no obligations, and never even took an oath or gave a bond. It is all a matter of 
organization among the miners. When the district was organized some man was ap- 
pointed recorder ; three weeks afterward another man would be appointed, and most 
generally there has been a number. In some parts of the State it is different, but in 
this county it is as I have stated it. I confine my remarks altogether to this county. 
I think the proposition which I have heard discussed of selling mineral lands in simi- 
lar manner to those sold for agriculture, by square tracts, and confining the owner of 
a vein within his side walls as bounded by his surface survey, would work great injury 
sometimes. A lode that would dip 45° a man would not be able to go very far down 
on before it got outside his walls. 

Q. Suppose you gave a man 40 acres and restricted him to the ownership of that 40 
acres ? — A. Then he might be able to get more ; but after the large expenditure of 
money on what might be a good paying ledge some one else would come in and take 
it away from him. I think that would be very obnoxious. I think he should be 
allowed, to follow the dip. 

Q. Suppose he was not restricted in his discovery shaft to the center of the claim, 
but could put it anywhere ? — A. It would be liable to run outside the limits of a mine 
on which he had expended a fortune just as he was beginning to make it pay. I think 
that would work great injury in some instances. 

Q. That would be so if he had only the amount of land covered by the present law, 
which is between 20 and 21 acres. Suppose he had made his discovery shaft on one 
side of the claim. He would then have 600 feet, and if his vein ran down at 40° he 
could follow it 2,000 feet in depth. Would not that practically cover all the deep 
mining that could be done for a generation? — A. That would be so if he had a regular 
cropping to begin with in the start. But I know of many mines that were worked 
several years before finding out that the vein is 300 feet or more from where it is thought 
to be, and a man may work ten or fifteen years before he discovers his claim, and then 
near his outside lines, when some one else would get the benefit of opening up his 
ledge. 

Q. Suppose you gave a man unlimited right of inspection and restricted the appli- 
cation of the act to the actual working of the claim ? — A. No, that would not do. The 
country would be entirely filled with explorers, and they would never be ready to ful- 
fill the provisions of the act. I do not like the theory of restricting a man to his side 
lines. It might answer very well ; but it has always occurred to me that where a man 
found a lode on the ground he should have the privilege of following that lode wher- 
ever it went, as far as he can follow it. I do not know of any mine down 100 feet. I 
have no experience in the litigation following deep mining. Under the law as it stands 
now any man taking up a lode claim outside of a placer claim, and finding the vein 
ran into the placer, he would have a right to run into that placer, and I think that 
would be right. If you take up a lode claim and develop it, it costs money and a man 
should have the benefit of it. Every one seems to understand that where a man has a 
lode he can follow that anywhere for 1,500 feet. There are difficulties that have started 
here, where a man can go upon another's ground and continue to take ore for a long 
time, and he cannot be driven off without expensive litigation and digging ; but there 
is a limit to that sort of thing here. The quartz mines have been worked in this coun- 
try about two years. The oldest claim has been worked twenty-five years. They are 
gold mines. I do not know any mines here that are down more than 100 feet. They 
have been stopping work. They came to a kind of rock from which they could not 
extract the gold, but they are doing some little thing with it now; but still they 
intend to apply for a patent for it. I cannot tell how long it would take them to reach 
the side lines of such a claim as that, made by a square location, which would undoubt- 
edly do away with much of the difficulty of litigation. I do not know of any improve- 
ment that could be made in the placer law. I think it would be very difficult to draw 
any provision for easement for an outlet to such mines ; if it could be, it might work 
well. I have never thought of it, except where I have purchased claims of my own. 
There have been no conflicts about outlets here that I have known of; no conflicts 
between owners of property, and no trouble about them. 



Testimony of William Magee, United States deputy surveyor, Shasta, Cal. 

Shasta, October 6, 1879. 
To the honorable Public Land Commission, Palace Hotel, San Francisco ; 

Gentlemen : In my statement to you made in the Shasta land office on the 2d in- 
stant I spoke of soriic inaccuracies in the sect ionizing of some townships in this 
county. I expected to be asked to explain that matter ; but as I was not, I will now 
ask to be permitted to state particulars. 



PUBLIC LANDS. 113 

In the fall of 1854, township No. 30 north, range 3 west, Mount Diablo meridian, 
was sectionized by Department Surveyor C. C. Tracy, and very soon quite a number 
of settlements made in the township ; and in the year 1858 or 1859 some other man, 
a United States department surveyor (whom I never saw), came into the same town- 
ship and resectionized the whole township and again starting in on the same south 
boundary line that Tracy had started from in his previous survey, but establishing 
the section corners over the entire township, differing from Tracy's corners from 50 
links to 350 links as before stated by me. Very soon 1 was called on by some of the 
settlers to show them the correct lines, and on finding that there had been two sur- 
veys made extending over the township I immediately wrote to the surveyor-general's 
office for information as to which of the surveys was to be regarded as the correct 
one, and I was soon informed that the first (Tracy's) survey was the correct one, and 
I was requested to furnish the office with the name of the second surveyor, which I 
did after some inquiry ; and I did not hear of the matter again until a few months 
ago, when our county surveyor happened to discover the awkward situation of these 
section lines, and without making any inquiry about it he made the matter the sub- 
ject of a long article published in a newspaper, over an anonymous signature, and 
insinuated that I was to blame for the erroneous work. This is the only instance of 
any such erroneous work ever coming to my knowledge in the course of my survey- 
ing, and as 1 have several years ago advised the office of this discrepancy I should not 
have mentioned it again but for the publication made by our county surveyor. 
Very respectfully, 

WM. MAGEE, 
United States Department Survey or. - 



Shasta, Cal., September 26, 1879. 
Answers of William Magee, of Shasta, to questions submitted by the Public Land Commission, 

To 1st: My name is William Magee; residence, Shasta, Cal.; my occupation, sur- 
veyor. 

To 2d: Have lived in Shasta, Cal., during the last twenty-five years. 

To 3d: I have acquired title to various tracts of land by purchase at the public 
sales and by private entry; also, by purchase, school lands from the State of Cali- 
fornia under the State laws ; also, placer-mining land from United States Government. 

To 4th. By general observation as a private citizen. 

To 5th : Uncontested applications from six months to two years. Contested applica- 
tions from one year to seven years. 

To 6th : There does appear to he some defects in the land laws ; but as these laws 
are so voluminous, I cannot undertake to make any suggestions for a remedy. 

To 7th : Shasta County is about 60 miles north and south, and about 100 miles east 
and west. The Sacramento Valley runs from north to south through the county, being 
about ten miles wide. About one-third of this valley is good tillable land, the balance 
mere pasture land. Timber only fit for firewood. The land on the east and west of 
the valley is rolling gravel-hills, interspersed with small valleys, nearly to the summit 
of the mountains to the east and west. These valleys contain good tillable land, gen- 
erally well watered, while the ridges and high lands are only fit for grazing lands. 
Placer gold-bearing mines, and also gold, silver, and copper bearing ledges, are found 
and are now being worked in many of these low hills and mountains. Iron of a very 
superior quality has been found to exist in large bodies in these mountains. A soft 
coal is also found in small bodies in the low hills. Marble of a very fine quality and 
in large bodies is also found in these mountains. And on the high mountains every 
kind of pine timber, of the finest quality, is found in inexhaustible quantities and 
extent. 

To 8th : I have not had an opportunity of examining the acts of Congress prescrib- 
ing the duties of the Commission. 

To 9th : I do not know that I understand what is meant by parceling surveys. If 
it is meant to extend the public surveys, I am of the opinion that the long-established 
present system is as good as any system that could be adopted, for the reason that our 
people seem to understand the present system well, and no good could result to the 
settlers by a change. 

To 10th: In my opinion the present pre-emption and homestead laws are all- that 
the actual settler should require— all that the bona-fide settler should ask for should 
he some modification of rules in filing and proving up his claim ; much cost of adver- 
tising and filing notices, where there are no conflicting claimants, might be dispensed 
with without injury to the government or to any other party. 

8 LC 



114 PUBLIC LANDS. 

AGRICULTURE. 

To 1st : Nothing. 

To 2d : From October to May ; quantity from 60 inches to 100 inches ; does not fall 
at the season when irrigation is wanted. 

To 3d : Any portion, or all can he cultivated for grain or hay without irrigation. 

To 4th : Not more than one-tenth part of the whole land. 

To 5th : Hay, corn, and all kinds of vegetables. 

To 6th : The irrigation of wheat is not known in this country ; that crop grows only 
in winter during rainfall. 

To 7th : The Sacramento River and all of its tributaries. 

To 8th : I have never known any injury done to land by irrigation. Good crops of 
wheat and all kinds of vegetables are raised at the altitude of 5,000 feet above tide- 
water ; but at that altitude the bodies of tillable land are very small but very fertile. 

To 9th : As a general thing the amount of irrigating water returned to the stream 
after being used is very small, ail depending on the situation of the land irrigated. I 
do not know of any local restriction in regard to the use of irrigating water, except 
that the oldest claim controls the water for all time to the extent of amount claimed. 

To 10th : The taking up of irrigating water is regulated by common custom, and also 
by State laws. It is only our small streams that are taken up in this county for irri- 
gation £>urposes ; none of the large streams are taken up for irrigation as yet. 

To 11th : I have not known of a single case of a conflict about water taken up for 
irrigation. But for milling and mining purposes the conflicts have been numerous and 
the litigations have been frequent and very expensive to the parties interested. Con- 
flicts have generally grown out of the loose mode of taking up water-rights under min- 
ing regulations ; want of system. This shows the great evil growing out of mining 
laws. 

To 12th : One half at least. 

To 13th : In my opinion it is neither practicable nor expedient to establish home- 
steads on pasturage lands. These lands should be disposed of by the government for 
cash only, and in large tracts, if desired by the purchaser, say from 1,000 to 2,000 
acres to each settler, if a limit is necessary. 

To 14th : Yes, these lands should be put inmarket at private entry for cash only, and 
let the boundaries bo described by natural boundaries (natural streams or ranges of 
mountains), and the extreme limit not less than 5,000 acres— as might be desired by 
the purchaser. 

To 15th : I have no means of knowing what number of acres of our common grazing 
land would be sufficient to raise one head of beef for market ; I presume that the graz- 
ing land in this county is about the same as in other parts of this State. 

To 16th : I am not competent to answer. 

To 17th : I cannot attempt to answer. 

To 18th: Diminished. 

To 19th : Cattle raisers do not fence their ranges ; cattle could not be confined by 
fences during winter on the range. 

To 20th : I do not think they would. 

To 21st : Abundant at all seasons. 

To 22d : I am not competent to answer. 

To 23d: Sheep pasturing increases the grass because it manures the land. 

To 24th : Sheep and cattle will not graze on the same land ; cattle will leave. 

To 25th : Joint occupation of the same land by sheep and cattle owners is not at- 
tempted here, it being impracticable. 

To 26th : I cannot state as to the number of either in the county. Cattle are owned 
in herds of as many as 1,500 and sheep in herds of as many as 5,000 head. 

To 27th : I do not know of anything further necessary to be stated here. 

To 28th : In many instances where the surveys have been made a few years it is nec- 
essary to call a surveyor to ascertain the location of the corners as from the lapse of 
time they become obliterated. 

TIMBER. 

To 1st : It is very difficult to approximate the amount of timber land in this county ; 
all of our mountain ranges may be classed as timber land. The quality is pine, fir, 
and cedar, all valuable to manufacture into lumber. Water privileges very good in 
the mountains where the timber grows. 

To 2d : No such thing as planting timber known in this county. 

To 3d : I should suggest as the minimum price $2.50 per acre, to be offered at auc- 
tion in lots of 160 acres, and if a limit is to bo placed on the amount to be sold to one 
man ; let that not be less than 5,000 acres. I name a largo limit, because a man who 
wants to go into the lumber business will not buy a small tract of laud. All govern- 
ment land should bo sold for cash only. 

To 4th: I do not see how timber land could bo classified beneficially for the govern- 
ment. 



PUBLIC LANDS. s 115 

To 5th: My observation has been, when pine timber is felled a scrub oak springs up, 
and is valuable for fire- wood only in about 15 years. When oak is felled a scrub 
pine springs up, but is of but little value for any purpose. 
• To 6th : I settled in this county when all of the mountain portion of the county was 
occupied by the wild Indians, and then the woods was burned over every year by the 
Indians without any damage to the timber. As soon as the whites settled in the low 
mountains the setting out of fires in the mountains was stopped, and very soon pro- 
hibited by law, with'heavy penalties. The result was the leaves fell from the timber 
and became very thick on the ground in a few years, and when fire did accidentally 
get out the heat was so great that it destroyed all timber as it went over the ground. 
I should suggest frequent burning of the mountains to preserve the timber, as fire is 
sure to get out sooner or later. 

To 7th : In my opinion, to sell the land is the only remedy. A law against trespass 
on timber is a dead letter on the statute-books, as experienced. 

To 8th : I do not know of any custom of cutting timber on the public land, except 
that every man cuts all that he wants. 

To 9th : From my own observation I have long since come to the conclusion that 
any laws against trespass on timber on the public lands, no matter what is the pen- 
alty nor in what officer's hands it is placed for execution, is a dead letter on the stat- 
ute-books ; and, likewise, a stumpage law would never bring a dollar into the public 
treasury. 

LODE CLAIMS. 

As to interrogatories from 1 to 19 inclusive, I do not consider myself competent to 
make any valuable suggestions. 

Interrogatory 20th. I am of the opinion that all contests and conflicts as to title 
should be left to and decided by the United States land officers, in the same manner as 
contests under all other land laws. 

21st. I could not make any suggestion. 

22d. I am of the opinion that all locations should be filed in the county-record office 
in the county where the mine is situated ; and that application for a patent should 
be filed in the United States land office of the land district within twelve months 
from date of location of the claim, and pressed on to patent without unnecessary 
delay. 

PLACER CLAIMS. 

1st. It is very difficult to state even approximately as to the amount of placer-min- 
ing land in this county. The land of this character which now remains unworked is 
generally gravel hills, and generally deep gravel deposits. 

Interrogatories 2 to 8, inclusive. I do not believe myself competent to give any in- 
formation of value. 

9th. I do know of quite large bodies of placer-mining land in this county, which is 
known to contain gold in quantities that would pay for work, that if water was in- 
troduced on to it the working might be stopped for want of outlet. Therefore it 
might be well for the law to provide a mode of obtaining an outlet for tailings for all 
such land. 

I would now make one suggestion as to mining districts and mining- district records, 
from my own knowledge of the facts as to the very loose and irregular manner in 
which they are generally kept : that such records should cease to be recognized in 
law so far as all future records hereafter made in that way are concerned. 

WILLIAM MAGEE. 

October 3, 1879. 



Testimony of John MarMey. 

Salinas City, Monterey County, California. 

Sejttember 30, 1879. 

My name is John Markley ; residence, Salinas City ; occupation, county clerk. I have 
lived in Monterey County about nine years. I have not sought to or acquired title to 
public land for myself, but I have obtained titles for others. I have been county clerk 
nearly six years, and have made many applications for public lands for citizens of 
Monterey County under the pre-emption and homestead laws, and have taken proofs 
in homestead cases. From my personal experience I find the great delay in getting 
patents from Washington a source of very great annoyance. 

California is a mountainous country, with valleys running through it. A very large 
part of this Monterey County is covered with mountains. All the good valley and a 
large part of the best hill grazing land is covered with Spanish grants ; then a very 



116 PUBLIC LANDS. 

large part of what is left is reserved and covered by the Southern Pacific Railroad 
Atlantic and Pacific Railroad reservations. 

What we want in this part of California is the restoration of the lands held under 
the railroad reservations, so those lands can be taken up by pre-emption and home- 
stead settlers ; then we want all the lands surveyed, so after all those lands that are 
fit for pre-emption and homestead settlers have been taken the balance can be sold 
for sheep ranges. The valley land in Monterey County is used for raising wheat, bar- 
ley, potatoes, beets, beans, &c, principally wheat and barley. The hill land is used 
for dairy purposes and grazing sheep and cattle. The full, actual cash value of the 
great bulk of the mountain grazing land in Monterey County is about 60 cents per 
acre, and the value of the choice spots of mountain that would be pre-empted and 
homesteaded is from $1.25 to $3.50 per acre. 

A part of the Salinas Valley could be irrigated from the Salinas Eiver, which is much 
needed in dry years. It only rains in the winter in Monterey County, commencing 
generally in November and ending'in April. The valleys have little or no timber ; the 
mountains have live-oak, white oak, &c, only good for firewood. There is some good 
redwood on the coast in very rough mountains. 

No mining of any note in Monterey County ; some good indications of coal and 
gypsum. 



Testimony of Jolin S. McBride, San Joaquin, Gal. 



John S. McBride made the following statement : 

I came here in the fall of 1865. I have been engaged in mining and am well ac- 
quainted with mining purposes. 

Q. Are you acquainted with the timber ?— A. I can't say that I am. When I came 
here the timber was pretty well cut off. 

Q. Do you think the timber is being destroyed ? — A. I think so, but I have no knowl- 
edge of the matter only from hearsay. 

Q. What is your opinion about reserving this mineral belt ? — A. I think it is benefi- 
cial to mining interests. I think altogether it has been beneficial. 

Q. Do you think it would be to the interests of the country still to hold this land ? — 
A. I think so. I do not agree with Judge Stiger in putting the lands on the same foot- 
ing and sell them all at the same price. I think the mining interests would be taken 
advantage of. Parties would take up lands for agricultural purposes, knowing it to 
be mineral, and hold it for speculation. 

Q. They can do it now, can't they ? By the way, how many claims can a man buy ! — 
A. I suppose a man can buy ail the claims he can pay for. In making selections I be- 
lieve a party can take up forty acres for mineral purposes. The distinction is this : 
that you require a man to do a certain kind of work has not a good title to mineral 
land. I do not know that he is compelled to do that ; he is compelled to do that in tak- 
ing up agricultural land. 

Q. In taking mineral land is there any advantage to the country in permitting a 
man to file on a claim, to hold them by possessory right without obtaining title to them, 
to paying for them ? — A. The benefit to the party would be just the same whether he 
acquired a government title or not if they develop their mine, but if they take it up 
for speculation simply, I think they ought to be compelled to pay. I think a law does 
require to do something with it before they can obtain a patent. 

Q. You know many claims are simply held on application ? — A. That is true, but 
they are required to do considerable work before they obtain a patent. 

Q. In hydraulic claims are they required to do any work before holding them ? — A. 
They are required by local laws to do it. 

Q. Suppose there are no local laws ?— A. I believe that all cases that have been tried 
here have rested on that basis. 

Q. Suppose there are no local laws which govern the taking up of claims, are they 
required to do any work ? — A. I do not know local laws. I believe the law requires 
before they can get a title that they must do so much work. 

Q. What I want to get at is this : a man filing on a piece of land, and without do- 
ing any work, and without taking the proof up and obtaining a final patent, holds 
the landeimply by his filing this to one quarter title to your land for an indefinite 
time; eventually 'if they want to sell they complete their titles and sell them, and 
very often they hold the same for an indefinite time on the mere filing. That is wrong — 
to merely locate a claim, doing no work and holding it under an application. Would 
you shorten the time, so that in a limited time a man who tiles on a claim must go 
ahead and complete his title ?— A. I would not, so far as my opinion goes. I would not 
care whether he got a government title or not if he developed his mine by working on 



PUBLIC LANDS. 117 

it, and thus carried out the intention of the government in disposing of the mineral 
land. 

Q. What have you to say about the debris question?— A. I cannot say that I am fa- 
miliar with the debris question. I am not acquainted with the lower country. I have 
passed through it several times. I suppose that the agricultural lands in the neigh- 
borhood of the Yuba Kiver and Bear River have been injured to some extent by the 
sediment that comes down from the mines. There is a belief that hydraulic mining 
is doing great injury now. I think that the streams have filled up so that the wash- 
ings spread without running down so far as they did. If there is any injury it is con- 
fined nearer to the foot-hills than it was in earlier days. 

Q. Have you any remedy to suggest? — A. No, I do not know that I have. My opin- 
ion is that there ought to be such, or government aid, so as to protect both interests. 

Q. How could that relief be extended by the general government ? — A. I do not 
know just exactly how it can be done. I have no definite plan. The government, 
however, can furnish means to build levees and build dams, flumes, or something or 
other, and through these flumes carry the debris on the tule land, or dam it up on the 
foot-hills, and keep it from spreading out over the agricultural land. I presume it 
would be a benefit to the tule land to have the debris carried down on it. 

Q. Do you think the government ought to do that ? — A. Either the government or 
the State. The work could be done just as any other internal improvement which 
the government makes (keeping open navigation, for instance) that would be for the 
benefit of the people of this State. 

Q, How would it benefit anybody except relieving the mining classes of a certain 
difficulty that distresses them ? — A. It would relieve the agricultural interests, too. 
We think that mining is a public benefit. 

Q. Is it your opinion that the complaints that have been made are caused by bona- 
fide hardships, or are they fiictitions cases, made for the purpose of obtaining excessive 
damages from corporations ? — A. I have no definite information on that matter. I 
presume we have been damaged to some extent, but I do not think we have been dam- 
aged to the extent that has be*en claimed. I do not know just what particular claim 
any one has. They claim that their land is destroyed, while there is a claim that the 
land has been improved by the deposits or slickens. I think in some places it will raise 
better crops than before, but I am not familiar with the matter ; I only state from 
hearsav. 



Testimony of John McClay, of San Joaquin, Cal. 

John McClay, of San Joaquin, October 24, made the following statement : 

I have been here since the fall of 1853 ; have been engaged chiefly in mining. I am 
somewhat acquainted with the timber-land country. 

Question. To what extent has the timber been destroyed? — Answer. I am not prepared 
to give a definite answer, but there has been a grea.t waste of timber. I concur with 
Mr. McMurray that a great deal of pine timber has been cut down and allowed to lie and 
rot. They would take two, three, or four cuts, say 20 or 30 feet long, and leave the rest. 
There has been a great deal of that in Sierra County and it is going on there now. 

Q. What would be the most effective way of preserving the timber ? — A. Private 
ownership, I think. 

Q. Would you place a limit on the amount of land you would permit a person to 
take ? — A. Well, in this part of the country it would be necessary for a man to own 
quite a large tract of land in order to make it of any value to him. The making of 
roads would be expensive, and it would be only useful for milling purposes. It is so 
far removed from everything else that it requires a great many roads to get your lum- 
ber out and get your logs to the mill. For that reason a small tract would not pay 
for the investment. 

Q. Are you familiar with the debris question? — A. I am familiar with it somewhat. 

Q. To what extent are the agricultural lands being injured, in your judgment? — A. 
So far as the Yuba lands are injured I agree with Mr. O'Brien's statement. I think 
his statement was correct in regard to the damage done on the Yuba River, but the 
Bear River I am so familiar with, but I understand that some of the land has been 
improved and some of it very much damaged. 

Q. Have you any remedy to suggest? — A. I have read a good many different plans 
suggested, but it seems to "me that the most feasible plan that I have read is this: 
dam the rivers, stop the tailings, and fake the water out on the plains below here. It 
see ins to me to be a good plan. There are many low places that can be filled up down 
in the foot-hills and on these red lands, enough to hold all the debris there is in the 
country. It would make very valuable land of it ; in fact a gentleman told me last 
winter— he was complaining very bitterly of the debris question, but he finally 



118, PUBLIC LANDS. 

\ 
acknowledged that he had received thousands of dollars' worth of good from it. On 
his land they filled up the tules for him, and it is now the best of land. 

Q. Are there any large bodies of tule land ? — A. Yes, they are in the vicinity of the 
Yuba River and below that on the Sacramento Eiver. 

Q. Do you think it practicable to carry the confined siit so far as that ? — A. I think 
it would be more practicable to put it on the plains outside of Marysville, and use the 
water for irrigating purposes. It would then make all that land valuable. As it is it 
is comparatively worthless. 

Q. Do they irrigate much here ?— A. They do where they can get water to irrigate. 
Without water we cannot raise fruit or anything. 

Q. Do you raise much wheat here ?— A. Not any, except for hay. We sow it in the 
spring. The owner cuts it for hay. * 

Q. What do you think of the policy of retaining the mineral reservation on this 
land ? — A. I think the present policy is a good one and should be continued. 

Q. Does it tend to the injury of the agricultural industry? — A. I think not ; I do 
not see that it does. 

Q. What do you think about the policy of shortening the time in which a man can 
obtain title to the placer land ? — A. I think it would be an excellent plan. It would 
stop so much speculating and holding claims for the purpose of speculating without 
developing it. If a man could get his title in six months or a year he could develop 
his land sooner. 

Q. Give your opinion of the practicability of restricting the time of placer claims. — 
A. I think it would be a good policy for the government to pass a law restricting the 
time. A person who makes application for mineral land should be compelled when 
they make the application to pay for them, or they forfeit their right of possession, 
and I would remove the restriction conceiting them to do $500 worth of work. Five 
hundred dollars' worth of work may be placed upon land that may be worthless. I 
should remove that restriction and place a restriction compelling them to pay for 
their land in one year or else forfeit their right. I think it would be a good idea to 
pass such a law, and I think the $500 restriction should be removed. The money may 
be spent on it and prove valueless when the parties come to work their mines. 

Q. What would you do in the case of an adverse claimant ? — A. In such a case if the 
other party did not make his payment inside of one year, let the adverse claimant into 
possession of it, if he pays for it. I would cut off these men who file upon land and 
hold for speculative purposes. Under the decision of the Commissioner a man can 
hold the land forever, and no person can claim that tract of land. He need not pay 
for it, but just have the survey made and file it in the land office, and there he holds 
it for all time to come. Plenty of this land is held now right here. Parties have had 
the survey made and filed on it, and there it lies. I would have a law passed by which 
he could not hold land for more than one year in that way. 

Q. Why should he not have as much time as an agriculturist has? — A. The object 
of the two is very different ; in one case a man wants to get a home, and the other 
simply wants to make money out of it. 



Testimony of John McDonald, San Francisco, Cal. 

John McDonald testified at San Francisco, October 14, as follows : 

I have lived in the State about twenty-nine years. I am not very familiar with 
hydraulic mining, but I will answer some questions that have a bearing upon hy- 
draulic mining. 

Question. You understand the classification of land which we have adopted? — An- 
swer. Yes, sir. 

Q. How can the timber land be best utilized and disposed of ? — A. I have been in 
timber land a good deal, and I have seen so much waste and destruction of it as to ex- 
cite in mo the highest concern, and I might say indignation. I believe the only way 
to protect the timber is to put all such as is within reach of the market into private 
ownership. I do not mean to say all the timber in the country should be sold, because 
a very large portion of it is beyond the reach of a market at this time ; but all that is 
now within reach of the market should be surveyed and sold, in such tracts as ex- 
perience might suggest and in such tracts as would justify the erection of extensive 
works for the manufacture of lumber and in furnishing wood to quartz miners for 
the purpose of timbering their mines. A great deal of it is used for that purpose. 
You must have mills in tbo first place, and you must have roads in the next place, and 
both mills and roads are expeusive in this country. Roads have to be constructed, 
running into the timber regions from the place of demand, probably t^n or twenty 
miles. Timber has to be transported on wagons, and there are many expenses to be 
iriCUrred in getting it to the market. I believe the timber land should be graded and 



PUBLIC LANDS. 119 

m 

classified, and the price graded correspondingly. Some lands are mnch more valuable 
than others. 

Q. How would you protect the timber that did not get into the hands of private 
individuals ? — A. When you get into the timber beyond the reach of a market, there 
is not much danger of fire. First, the hunters and tramps and campers do not pene- 
trate beyond the border lines of where profitable operations are being conducted, to 
any great extent. Secondly, the trees are in a state of nature, the ground is not cov- 
evered with brush, and it does not readily burn in the deep forests — at least not so 
readily as where it has been partially cut and worked over. The largest source of: 
the destruction of timber is the inconsiderate cutting and the felling of trees, leaving: 
them upon the ground to rot and start the fires that destroy the forests. 

Q. Are these timber lands valuable for agriculture— the timber lands that are not- 
included in the arable region ? — A. As a general rule I think the timber lands are not 
valuable for agricultural purposes, in the higher altitudes. I believe there is a very 
large amount of land that has been covered with timber in the lower foot-hills that is 
valuable for agricultural purposes. In California (and it is of California that I am 
mainly directing my remarks) the foot-hill region is the region the mineral is found. 
On the flanks of the mountains the land was covered sparsely with timber ; had it been 
cared for, it would have been very valuable to-day for the timber that grew upon it. 
The timber being gone a considerable portion of it is now valuable for fruits, vines, 
and berries, and iteven embraces considerable tracts of grain land. 

Q. This tract is withdrawn from sale, is it not ? — A. Yes, this is a gold and mineral 
tract, and I believe it has been withdrawn from sale. 

Q. What would you recommend in that case? — A. I would recommend the sale of it 
for agricultural purposes, reserving the right to explore for mines. I would sever the 
subterranean from the surface rights. The man who buys agricultural land buys it for 
what the soil will produce ; he does not buy it for what is in the bowels of the earth, 
which will enhance, and it may be exceed, the value of the surface. 

Q. Would you do the same with timber land? — A. Yes, sir; any land that is sold for 
its surface vegetable productions, whether timber, grain, or fruit. I would reserve the 
right to explore for mineral. 

Q. If the government, in the body of a patent, reserves the title to the mineral in the 
land, a man's title is uncertain ; but if they make no reservation except simply of the 
subterranean values, that is a different thing ? — A. That is the sense in which I meant 
to be understood. That the government should sell the surface as agricultural land 
absolutely; and if it is found to contain mineral, the man shall be compensated fully 
for all that is taken off* his surface — fully compensated for its value ; and it should be 
taken as railroads take land for railroad purposes, or something in that style. The 
ownership is absolute, and the owner of the soil must be fully compensated for any 
damage done him. It is to the interest of the miner, it is always to the interest of the 
owner of the soil, that this provision should be made, for this reason : if the miners 
discover valuable mines they pay him all damage done him, while the value of his land 
is enhanced by the prosecution of the mining industry. The two interests help each 
other. Furthermore, the man who buys the soil is not a prospector for mineral, and if 
the mining professional is forbidden to go on the land its mineral wealth will never 
be revealed. We have two classes (almost orders) of men who follow mining. The 
men of the one class, wherever they go, keep their eyes open looking for indications.. 
They are hunting for the precious metals, and it is this class of men who will discover 
the mineral. If you wish to develop the value and wealth of the land, you must allow 
the miner to prospect for it ; never, however, to the prejudice of the interests of the 
agriculturist. If the miner wants to do anything there, he must pay for all damage 
he may commit. 

Q. If the great body of mountainous lands in this country pass into private owner- 
ship for timber and pasturage or agricultural purposes, do you think that it would 
impede mineral discovery ? — A. I think if all the lands are given into the ownership 
of agriculturists, absolutely, with a title from the surface to the center of the earth, 
as has been stated to this Commission, it would stop the development of the mineral 
interests. 

I wish to add that the wealth of what is called the mineral region or belt in this 
State is yet, in the opinion of a number of men, in its infancy as to development. 
They have scarcely scratched the ground, and a great many mines of great value and 
importance will yet be discovered. The mines already known, now too low in grade 
to be worked, will be successfully worked by improved machinery that will hereafter 
be discovered. 

Q. Give us your opinion of the best system of disposing of the irrigable lands and for 
the utilization of them, having in view these two facts : first, that the greatest devel- 
opment of the interest of the country is advantageous to it; and, secondly, that the 
disposition of the land to the greatest number of holders is of advantage to the 
country. — A. I will say that ever since I have been in California what is considered 
non-productive land without irrigation has been yearly growing less and less. When 



120 PUBLIC LANDS. 

I came here the whole country was considered a desert and non-productive, and I 
know lands now between this and Sacramento that a man would not have paid for 
the surveying of in the early days, in 1862, that are to-day worth from $20 to $50 per 
acre, and produce fine crops without irrigation, and I believe the same thing is true 
of most of the land in this State. By the adaptation of crops, by plowing the soil 
deeply, by plowing early, by summer fallowing the land, and dividing it up so as to 
cultivate the different sections alternate years, and alternating crops, I believe that 
nearly all the land in California will ultimately be productive without irrigation ; and 
I believe further that the possibilities claimed for irrigation are largely overestimated. 
When we have anything like an average rainfall in California you can produce a 
crop by judicious cultivation almost anywhere. 

Q. Do you think you can in the Mohave Desert ? — A. I do not know whether it can 
be done there or not. I am informed that in Central California this is the case. I want 
to say that when we have an average rainfall, as stated before, we can produce a 
crop almost anywhere ; and when we fail to have that rain in the valleys, then there 
is likewise a failure of snow in the mountains ; and if it is a dry year there is no 
water to irrigate with or fill your ditches with, hence, I believe the possibilities claimed 
for irrigation are largely overestimated. The use of water from artesian wells will 
largely contribute likewise to the production of crops, fruits, &c. 

Q. in the region where agriculture is manifestly dependent for certainty upon irriga- 
tion, would you suggest anything about the disposal of the lands therein ? — A. No, sir, 
further than to let it wait. There is no scarcity of land here. The land can be had 
at government prices, or it can be had second-hand from men who have bought it for 
speculation. As regards those lands that are considered non-productive without irri- 
gation, I would rather let them wait than to dispose of them for nothing. 

Q. Do you recognize what we call pasturage lands, where they are valuable for pas- 
turage only? What system would you suggest for disposing of them ? — A. I would 
suggest that they be sold to private owners in tracts of such size as would justify men 
in settling the land ; sell a man one, two, three, four, or six sections, if it should spread 
over the mountainous lands. In some instances I would sell him even more than that. 

Q. Are these lands used for stock?— A. You can get surface water in many places by 
digging wells, and there are occasionally springs flowing out of the canons. There are 
some places that can be used at present, and there are other places that can be used 
in the future by artesian wells. I believe almost all the land in California in the cen- 
tral part may be used for stock watered from wells, either the ordinary surface wells 
or artesian wells. 

Q. Would it not be an advantage if every pastoral farmer had a little piece of land 
that he could irrigate to make farm land so that these industries would be mixed ? — 
A. I think there is scarcely any place where a man can't find such a tract upon which 
he could produce fruits and garden vegetables for his family and a little hay for his 
stock when it was necessary. 

Q. Do you think it advisable to lay out these tracts with a view to securing that? — 
A. No, sir. I would allow a man to" go and choose his land, selling what he wanted 
within certain limits, and he would find for himself a place that would suit him. The 
first that made locations would perhaps get the best, the next would get the next best, 
and so on. 

Q. Would not that result in taking up the springs and little streams into individual 
ownership, and thus give such a man command of a great pasturage tract? — A. The 
streams and little<rivu!ets are all taken up all through the districts. Really none of 
the public land is taken up, except that which contains the water. This is not alto- 
gether true in Southern California, but it is true to a large extent all over the State. 
The possession of good wells makes a man independent almost of these little streams. 

Q. In Central and Northern California, Western Oregon, &c, there is a great body of 
land, that we call arable, where agriculture is sustained by the precipitation of moisture 
and without irrigation. Would you suggest any changes in existing laws in regard 
to that ? — A. No, sir. I find no fault with the land laws so far as they apply to that 
kind of land. 

Q. Could the method of obtaining title to land by pre-empt ion and homestead bo sim- 
plitied, to the advantage of the applicant for land?— A. I think where the law is 
administered with impartiality and courtesy to the applicant that the present law 
affords facilities enough. 1 mean where it is faithfully and diligently administered. 
1 have heard that that is not the case in the land office, and 1 think that such coin- 
plaints must be sometimes well founded. 

Q. Have you considered the subject of mining and Lode claims ?— A. Yes, sir; some. 

Q. Do you think that the old district-mining system, under whioh minors organized 
mining districts, and by which titles to mineral claims are initiated, and in which 
districts they are without local laws, are of any farther advantage ?— A. No, sir; and 
they ought to be abolished, and the laws should conform to the laws which have been 
and which shall hereafter be passed by the general government. 

Q. You arc aware that the present law gives a man the right to follow the dips, 



PUBLIC LANDS. 121 

spurs and angles of Lis lode. Do you approve of that ? — A. That is right, sir. A man, 
when he locates a ledge or lode and begins to develop it, should have all the benefit 
it will yield him, and it should be his. Wherever it wanders to he should be allowed 
to follow it along. 

Q. Do you prefer that to a square location ? — A. Infinitely, sir. The square location 
is very unjust and works great injustice. A man might locate a claim costing large 
sums of money and much labor for its development. He might prove it to be valuable, 
and its dips and angles might be such as to directly take it off his mining claim, if 
the locations were made by vertical lines. He should be allowed to follow it wherever 
it goes within the limits of his end lines, which should be vertical and parallel with 
each other. 

Q. You have some knowledge of hydraulic mining ; to what extent is that kind of 
mining carried on here ? — A. Very extensively. My understanding is derived from 
two sources of information, which leads me to believe that it is an extensive interest 
in this country. 

Q. Is there not a complaint that the wastage of tailings from the hydraulic mines 
is destroying large tracts of agricultural land and injuring the harbors" of California ? 
What is your opinion about that matter? — A. The complaint is not well founded. 
That the rivers do carry some earth loosened by miners out into the valleys and into 
the bays is doubtless true ; but it is but a small percentage of the whole that is carried 
down/ Hydraulic mining is not the chief source of these immense deposits of sedi- 
ment. Every industry of the people of the State contributes to it. Agriculture con- 
tributes very largely to it ; grazing contributes to it through the animals running over 
and dragging up the mats of roots and loosening the soil, and subsequent rains wash- 
ing it away. The lumbermen contribute to it very much ; every log he drags over the 
roads loosens the earth, and eventually it is washed into the rivers. Every wagon-rut, 
railroad, and county road contributes to the sediment that flows into the canons. I 
have seen acres of earth slide bodily down the mountain-sides into the rivers. I have 
known the cutting of a wagon-road along the mountain-side to so take away the props 
to the soil on that side that a heavy winter rain carried the whole mountain-side down, 
acres upon acres, with the forest trees upon it, until it obliterated the marks of the 
road. The soil in our valleys, even in the agricultural portion, is being washed away, 
and you can go along and find great gulches ten feet deep and twenty or thirty feet 
wide that did not exist there twenty-five years ago. The stock trampling over the 
grass have broken up the roots or mats, and the soil which they held together begins 
to crumble, and then the rains of winter carry it off little by little. It cuts off the 
bank by the square yard. These are things that did not exist in California prior to 
its cultivation. 

I would like to say a word about the timber. I feel a great concern and indignation 
at the manner in which the timber of this country has been wasted and criminally 
destroyed. I have seen whole tracts of timber cut down and left to rot upon the 
ground because the enterprise which prompted its cutting was not well considered 
the project was abandoned, and the whole forest rotted and wasted. Within the lines 
where once was a splendid growth of oak and pine sufficient for the fuel and for all 
the lumber necessary on this coast for one hundred years, if it had been judiciously 
handled, it has been entirely denuded, and you may walk over land and find the 
stumps and mutilated trunks lying there now. Thus they are cut down by the waste- 
ful hand of man, who had no interest in protecting them, and lay there rotting. I want 
to say another thing. The government should send its surveyors ahead of the ax- 
men and lumbermen, and not follow behind them. The rule here has been that all 
the timber is cut and wasted before the survey is made. It is to the interest of these 
lumbermen to keep the surveyor from overhauling them, and they succeed in doing 
it. Surveys are generally made where it is most advantageous to the surveyor, with- 
out reference to the wants of the people. The valuable timber lands are usually rough 
and interspersed with underbrush, and it requires a great deal of labor to cut the brush 
in order to run the lines through. The surveyors do not like to have to chop like that : 
they want to go upon the plains where they can see from one corner of a section to 
another, where there is no bush in sight, and then measure it off by miles without 
reference to whether it is desert or agricultural lands or desirable for any purpose. I 
think the contract system would work well when submitted to competition, and would 
perhaps secure a better survey than we now have. Then if a man went into a rough 
^country he would receive a proper price for the work done there. I think the. present 
law allows a survey of the lands easiest and the quickest surveyed, without reference 
to the desirability of the land. It cannot be of any value either to the government or 
the people to have desert lands surveyed, because no depredations can be committed 
upon that character of land, while the timber land is being despoiled of its value every 
year. 

I have had some experience in the marking of sections. The corners as established 
by surveyors do not amount to anything, particularly in grazing districts. Cattle and 
sheep knock them down and cam'' them off the first thing ; fires burn them off, and 



3 22 , PUBLIC LANDS. 

the stock also destroy the mounds, and all signs and indications of. the lines are lost. 
There should he more permanent monuments of some kind established ; either hillocks 
thrown up or some permanent monument located. 

Accuracy in the original survey is highly important. A man may locate a pre-emp- 
tion claim and he will purchase that landaccording to the official survey. Sometimes 
the post that designates his corner is lost, or stolen for a purpose, and no man can tell 
exactly where it stood. A survey is accurately made, and may change a man's house, 
or barn, or mill off that section which he bought on to another man's land, and he 
thereby loses it. I have known instances substantially of that character. Therefore, 
accuracy in the survey is of the highest importance, because if accurate in the begin- 
ning all" after surveys conform to it. 



Testimony of James McGillivray, of Oakland, Col. 

James McGillivjray, of Oakland, Cal., testified at San Francisco, October 11, 1879: 

I have lived in California since 1850. I have been in different localities, and have 
acted as an expert in mining cases. I am familiar with hydraulic mining, and follow 
that business. 

Question. State what injury is done by hydraulic mining to the agriculture of the 
State. — Answer. There is a portion of the State where the land would be injured by 
hydraulic mining; some low land in the neighborhood of Marysville, for instance. I 
consider that the amount of land that would be injured by it would be very small in 
comparison with tbe benefit that would be derived from gold-mining. Hydraulic 
mining is the sole cause of the population that is in eight or ten counties of this State. 
Many millions are invested in ditches and dams and mining operations of different 
kinds. I think that it only injures a few thousand acres in the neighborhood of Marys- 
ville, at the mouth of Bear River. That is the only portion of the State that it has 
injured. The northern portion of the State is not affected at all. In Trinity and 
Shasta Counties and south of Nevada County it has not affected the land. I do not 
think hydraulic mining is doing any injury to harbors. By examining the overflow 
on lands in this place it is found to be salt marsh. Underneath the upper soil it is all 
stratified with a clayey substance which was formed there by water that came down 
previous to the commencement of hydraulic mining operations. Of course there is 
some that comes now, but not enough to affect the bays, as the water which flows out 
of the Golden Gate is sufficient to scour the harbor and keep it clean. I think the 
river can be helped by a straightening process. Wherever water is running in small 
streams or ditches for mining purposes it always runs well ; where there are sharp 
turns it runs very badly. This is tbe same case with the Sacramento Eiver. If they 
were to cut off the sharp points and fill in the curves with walls, I think the river 
would scour out and be improved. I think the difficulty would be relieved by straight- 
ening this channel so as to get a more rapid flow of water, causing scouring. There 
was a company appointed to investigate the possibility of constructing a canal. I 
think I convinced them that it would be a good thing to straighten the Sacramento 
River. 

Q. What have you to say of the timber land? — A. The timber land is used for min 
ing purposes; outside of that it is not being injured. Of course it could be sold. 

I wish to say a word in regard to the ground that is taken up for hydraulic pur- 
poses. According to the present law a man can, pay $40 and have his land surveyed, 
and let it lie without paying or working it, and while it is in that condition he pays 
no taxes, while land alongside of it does pay taxes. I think something should be done 
to make those people obtain title to their "land. They dig pit-holes and call that an 
annual working, and that is the improvement that they put on it. I would compel men to 
pay just as soon as the survey could be made. The present system encourages people 
to hold the land idly for a long time. Now, with regard to the tailings which come 
from these mines. Where a man uses 2,000 inches of water, if lie has a good grade ho 
can run off eight yards of gravel to the inch of water per day of twenty-four hours, 
so that he would wash away 16,000 cubic yards a day, and that fills up a great deal 
of space. Of course, instead of reaching the bay it reaches some partially flat coun- 
try, and lodges there and fills up its depressions. 

Q.- Can any method be provided for taking care of these tailings f — A. I have had 
some experience, while mining and farming in Trinity County, in that respect. A 
man worked some ground back of me and built large dams, and held the tailings for 
years. Now, where I am mining at present, from the bed rock to the old channel, 
and down the present stream, it is 1,800 feet, and in a space like that you can under- 
stand that an immense amount of tailings can be deposited; dams can be made simply 
by laying brush in the channels for carrying off the waste water, and as the water 
passes through the hard material is held there. 



PUBLIC LANDS. 123 

Q. If these accumulations of deposits are made in this way will they not subse- 
quently be broken up by the channels of the streams, and go down very slowly, and 
spread over the agricultural lands ? — A. There has been very little of that damming 
done, and I think they would hold there. I think it would be a complete protection 
for the country, for a long time at least. They had a flood in this State in 1862, when 
all the streams overflowed. I had a farm at that time, and the farm was overflowed ; 
the water left a sediment on the ground from 2 to 10 inches, and I found it of great 
advantage to the land as a fertilizer. Of course, if it had been heavy saud it would 
have injured it. That flood was widely spread all through this State. If the mines 
were stopped at the present time Marysville would be worse off for the first few years 
than it would if mining continued, for this reason : there are a great many dams built 
in the mountains to reservoir the water in time of flood — some as much as 100 feet 
high — and they run back for hundreds of acres and hold the water back from run- 
ning down the natural channels in times of flood. If mining was stopped all these 
obstacles would be abandoned, and where the Bear and Yuba are now filled up this 
debris would come down and bury Marysville up in less time than the mining would. 
There might be large places set apart for the water to flow on, and by building dikes 
it can be kept in place. There is water enough held to run the mines through all the sea- 
son. After they stop mining from the natural flow of water until the water comes again , 
the water they use is taken from supply held by reservoirs. There is a great deal of cap- 
ital invested in the construction of reservoirs — there is one that cost $200,000. I pro- 
pose building one myself 100 feet high. I regard hydraulic mining as being in its 
infancy. I think there is as much gold in Forest Hill Divide as all that has been taken 
out in California up to this time. Of course it will never all be taken out, but it is a 
thing that will always be a source of income. • 

Q. How do you obtain title to the water? — A. Formerly all we did was to go and 
dig a ditch, and we were not limited as to its size. Our system then was, no matter 
how much water you carried from a stream, you held that right if it was three times 
as much as you wanted to use. By an act of Congress, which says that in taking up 
water you shall first put a notice on th9 ground where you wish to divert it from the 
stream, saying how much water and under what pressure, and by what means, and to 
what points it is to be carried, and for what purpose, as soon as you place that 
notice there you then have to get that recorded in the county in which the water 
flows. If the water is in two counties you have to record it in two counties, and 
you must commence work in sixty days. If you don't your right is gone up ; and you 
must finish and protect your work within a reasonable time. 

Q. Do you all believe ^that you can " float " your rights ? — A. That is the decision of 
the courts, provided you do not interfere with any accrued rights. If a man had a 
right above you which he had had for a long time it would be a hardship on him to 
take it from him. You can move your water as long as you do not injure him. Most 
of our laws governing this matter are court-made laws, most of them being decisions 
of the supreme court. If we have a new case that has not been before the supreme 
court, we don't know how it is to be determined until it gets there. The supreme 
court has held that when a man has had undisputed possession of his land for five 
years that he can hold it as against any one else. If a man has occupied his land for 
five years without any other counter-claim he could not be disturbed. Our statute of 
limitation is for five years. 



Testimony of O. H. McKee, San Francisco, Cat. 

San Francisco, October 15, 1879. 
O. H. McKee, attorney-at-law, made the following statement : 
I would say that I have had a great deal of experience in mining litigations, includ- 
ing titles to mines in California, Nevada, and Utah. I had charge of the mineral branch 
of the General Land Office at Washington until 1872, before coming here. Since that 
time I have been practicing law here, so that I have had an opportunity to see the 
administration of the mineral land laws in Washington as well as here, and I would 
give it as the result of my experience that the present law does not work satisfactorily 
and is by no means free from difficulties. I am decidedly of the opinion that if we 
were to start anew to dispose of the mineral land it would be better to adopt the square 
location with vertical side lines. Under the present law the right to follow the dip 
or lode has given rise to such needless litigation that many claimants are ruined, even 
though owning valuable property, by becoming entangled with the claims of others, 
and the law, although entitled u An act to develop the mineral resources of the coun- 
try," is, in some respects, a misnomer. Of course in old districts the beginning now of 
the square system of location would be attended with a great deal of difficulty. It 
would be different from a new district, where everything would be clean from deep 



124 PUBLIC LANDS. 

locations ; though square locations might be made in the old districts, of course sub- 
ject to the vested rights of parties who have filed locations, whether patented or un- 
patented. In new districts I think it would work admirably, and give greater confi- 
dence and security to the prospectors and investors in mining claims. With regard to 
the size of locations I should judge that they ought to be about forty acres in area, 
which would be 1,320 feet square. That is nearly double the present size. Again, there 
are difficulties inseparable from the manner of locating the claims at present — the 
maintenance of claims in outlying districts which are in charge of a recorder who may 
be irresponsible, indiscreet or indifferent, or who may be even in some cases corrupt, 
where under the fee system he would be induced to allow relocations of the same 
ground merely for the purpose of obtaining additional fees, until the whole district 
would be in a tangled-up mass from which it seems impossible a man could free him- 
self. I would recommend that every United States land district in which there are 
minerals be subdivided into mining districts and mapped off. For example, the Bodie 
land district could be divided into three or four submineral districts, each with a 
United States deputy surveyor, who should be surveyor and recorder, to be paid di- 
rectly by the government like other officers, or by fees to be arranged as Congress 
might direct ; that the district surveyor or recorder shall survey the claims and see 
that they do not overlap, and shall furnish the register and receiver of the land dis- 
trict with a monthly abstract of all locations of surveys made, so as to perpetuate the 
record and also for better security. With regard to obtaining titles from the govern- 
ment, I think it should be mandatory upon miners after their locations are surveyed 
and recorded to initiate proceedings with a view to obtaining patent and paying the 
government an acreage. There is a question upon which I am hardly clear in my own 
mind, whether we should compel thetn to institute proceedings for obtaining a patent 
within a certain given number of months after their location, or whether they should 
be compelled to institute proceedings for a patent in every instance as soon as the 
claim has produced a given amount. 

Question. Would you not also have a limitation when they should pay up on placer 
claims? — Answer. I would apply this to all mining lands. The present law providing for 
the sale of quartz veins by the acre never was to my mind a proper one. In the first place 
the government would get more in the way of revenue from the sale of claims that were 
practically worthless than out of those that were of enormous value. I think that 
even under the present law claims should be sole] by the linear foot. Take, for exam- 
ple, a claim of 1,500 feet. If the government price was 50 cents per foot they would 
receive $750 for the claim, and also something for the adjoining surface. However, 
they did not do that, but just enacted a law providing for the sale of quartz lodes by 
the acre. I think the district organizations, which receive a sort of quasi recognition 
by the law of Congress, should be abolished, and the government take entire custody 
of the matter of mining claims right from the initial point up. Furthermore, I think 
it was certainly a mistake to surrender the jurisdiction of the district laud office in the 
case of contested miniag claims to the courts. I am unable to see that it has 
expedited matters or that it has cheapened justice or been of any benefit. The ques- 
tions that arise are nearly all questions of fact, and they can be just as well deter- 
mined before the register and receiver whose attention is entirely confined to land 
matters as before a court whose time may be taken up by a thousand other matters, 
and jurors who may have but little interest in the case. I favor the immediate resto- 
ration of that power to the district land office. Now, in contested cases, the matter 
is referred to the court and the government is unable to do anything with regard to 
its own property until the court may determine what shall be done. I should be iu 
favor of the restoration of a jurisdiction to the register and receiver, acting as a court. 
I would have the whole matter come under them. Of course I would not approve of 
any legislation that would interfere with any vested rights. 



Testimony of B. McMiirray, San Joaquin, Cal., relative to timber and mineral lands, 
placer claims, title, tailings. 

R. McMurray, San Joaquin, October 24, made the following statement: 

I have lived here twenty-seven years; am familiar with the timber land iu this 
county, particularly on this ridge. 

Question. What class of timber have you here f— Answer. We have, or did have, 
land heavily timbered with sugar-pine, spruce, fir, and oak. A portion of it is still 
heavily timbered. Lower down the timber is lighter and of a different character 
from that above, and not so well calculated for milling purposes as the timber above. 
This section of country has been heavily timbered, but you see the condition of it 
now. 

Q. To what extent has timber been wasted? — A. 1 have known of millions of feet 



PUBLIC LANDS. 125 

of sugar-pine trees from 100 to 150 feet in length that have been cut down, with only 
50 feet of it used, and that is carried on to a certain extent at the present time ; and. 
we have little sugar-pine left except that which protects itself by being in the caiions, 
where it caDnot be reached, and a great deal that is being cut at the present is 

cut by those who are making . They will cut down a sugar-pine which has 

20,000 feet of lumber in it, and perhaps use only 20 feet of timber; and sometimes 
when the tree doesn't contain the right kind of timber they will leave it and cat an- 
other. I do not think there is such large timber destroyed by fire that has been repre- 
sented to you usually ; it is small timber that is destroyed by fire frequently. You 
will see large trees, but not often. 

Q. What effect does the waste of choppers have upon fires ? — A. It has a very inju- 
rious effect. Judge Stiger said it adds fuel to the fire ; and wherever there is a num- 
ber of trees cut near each other the trunks and limbs left have destroyed the large 
timber, because it makes a large fire. 

Q. In your judgment, is heavily timbered country of much value for agricultural pur- 
poses ? — A. Some portions of it is valuable, but that portion upon which the timber is 
left now I do not think is valuable for agricultural purposes because of the great alti- 
tude ; the season is very short, in fact forever snowing, and, I was going to say eight 
months in the year, but they have it six months at least, and it would be of no value, 
except for grazing purposes and lumber. 

Q. What land system could you suggest as being advantageous and preserving the 
timber from wanton destruction, fires, &c, and still leave it open to legitimate indus- 
tries ? — A. I do not know any better way than having it owned by individuals. I am 
inclined to think it would be a better plan, and particularly where the timber is used 
where there is a market for it ; and I think if the timber land that is left now was 
sold, allowing individuals to get title to it, it would be very much better for the land, 
and the government would realize what is paid for it. It sometimes costs $10 an acre 
to get this land. If I want a piece of land of 160 acres, I would go live on it. Myself 
or some other person must go do it. I will have to get a purchase title for him. A 
pre-emptor can live on the timber land if it is valueless except for the timber. I think 
if there was a law by which you could go on a piece of land and obtain title in sixty 
days, I think it would be a benefit to everybody and a benefit to the timber. The con- 
dition of the timber at present is such that a small quantity of the land would be of 
no value, because it is generally in the caiions or on the hills, where it does not pay to 
go for it ; unless you could purchase 640 acres, it would be of no use to you, but would 
be expensive above the milling and the hauling of these logs to the mill. In this 
section of the country roads would have to be constructed before any hauling the lumber 
out and getting the logs to the mill. Our hills are very steep here, and it would cost a 
great deal of money to build roads. 

Q. What do you think about continuing the reserving of the mineral belt ? — A. I 
think it most certainly should be done. It is protection to the mining interests, and 
I think that it is greater than the advantage would be to the agricultural if it was 
thrown open, because the local laws prohibit a location to such land as would be sold 
for agricultural purposes. If it was allowed to go on, I think it would be very detri- 
mental to the mining interests. It would throw this mineral land into the hands of 
monopolists and grabbers, and they would buy it and hold it. The agricultural inter- 
est is such that they must prove this mineral off before they can purchase it. I think 
this reservation is very beneficial. 

Q. How do they prove it off? — A. They take the proper evidence before the Land 
Commissioner and prove that it is more valuable for agricultural purposes than it is 
for mining purposes. 

Q. How do they prove there are no lodes in it ?— A. They only know that there are 
no evidences of lodes in it. I believe that all that is required under the present laws 
is proof by ex-parte affidavits. 

Q. What have you to say about the debris question ? — A. I hardly know what to say 
about it. It comes too near home whether lands where the coarser material (gravel 
and sand) could be dammed above the valley lands that are cultivated. That I cannot 
state. I think there is very little of this coarser material that reaches the valley land ; 
that is, the lower portion. There is very little of this coarser material which reaches 
Marysville. 

Q. Is there much sand ? — A. I have never examined it to see whether it was slickens 
or not. It always appeared to me to be a lighter material. 

Q. To what extent are the lands above the valleys in the hands of the government, 
and to what extent have they been taken up by individuals ? — A. I presume nearly 
all tell you, " Go to the foot-hills " ; that has been my impression about it. Except the 
red lands below Smartsville, I always supposed that the lower lands and valleys have 
all been taken up. 

Q. Are any lands benefited by slickens ? — A. I think the red lands outside of Smarts- 
ville would be benefited by it. 

Q. The injury which they claim, was it a permanent injury or a temporary one ? — 



126 PUBLIC LANDS. 

A. They claim it is permanent, "but I cannot see it in that light. We have, for instance, 
reservoirs where the same material has been deposited, and we have one of them to-day 
that can raise hay and clover as well as any land in this section of the country. They 
can raise three crops a year where this same material is deposited, but it has lain there 
some years before it was cultivated. 

Q. What do you think of the propriety of limiting the time in which a man can 
acquire title to his claims in placer mines ? — A. I think it would be a great advantage. 
For those who locate for an honest purpose I think it would be beneficial ; for those 
who locate for speculative purposes, of course it would be a detriment, and that class 
of people we are anxious to discourage. For the general interests it would be advan- 
tageous to let them acquire title without expending the money that is now required. 
They now have to make affidavit that there is $500 worth of work expended on that 
claim. Frequently all the money is to be expended to no purpose ; that is one reason 
why many of these mining claims have not been opened. For instance, a man will 
locate between two hills or mountains ; there is no outlet from which he can wash his 
mine ; he must lay on his claim until he can get enough land to justify him in making 
an outlet, and if he wants to acquire title to it he cannot do that until he has expended 
$500. If he desires to acquire title he must expend $500, which may be of no value to 
the mine. After it is opened the investment in the development of a mine is great, 
from the fact that long channels have to be driven to get an outlet for their tailings ; 
then there is iron pipes for hydraulic purposes, flumes, &c. 

Q. Can you suggest any practical remedy for the tailings? — A. I have noticed here 
so many plans that I would not undertake to improve upon them. I have listened to 
Mr. Yon Schmidt and others, and it seems to me that the plan the most practical is that 
of Mr. Von Schmidt ; that is, to dam a sufficient portion of land, to be used as a dump- 
ing ground ; a territory that Judge Stiger suggests would hold all the tailings ; while, 
on the other hand, to dam the upper portion would deposit the tailings on the red 
lands. I am quite certain it would be beneficial to the lands and make them very valu- 
able, and probably pay the expenses of doing it. The farmers ought to find some plan 
for disposing of them. I do not know any better way than to have the protection come 
from the government. 



Testimony of H. A. Messinger, Caw/po Seco, Calaveras County, Cal. 

Hon. H. A. Messinger, of Campo Seco, Calaveras County, California, testified at San 
Francisco, October 14, 1879, as follows : 

I came into Calaveras in 1852 and have been living there ever since except two years. 
I have been engaged in farming and mining — all kinds of mining except quartz min- 
ing ; and have been engaged in the stock business. 

Question. How can the timber be best utilized by the people and preserved from 
destruction ? — A. In my opinion the only way is for the government to dispose of it to 
private owners, and they will protect it the same as they would their own interests. 
Much of the timber has been disposed of under the pre-emption and homestead laws — 
as much as it would pay for people to enter. It is a mistaken idea to suppose that 
Calaveras County is covered with timber. The timber of the foot-hills consists of oak 
and pine. It has been destroyed and consumed by miners and ranchers. The second 
growth that is now springing up is being destroyed shamefully. The people go and cut 
second growth oak from 3 to 6 inches through, and it takes a great many of them to 
make a cord. Where this second growth is cut off (and it is the same way with pine 
where it is cut off) there is very little chance for a third growth to sprout or come up, 
because the young trees are not at an age to produce seeds. This is the experience of 
those who have Colorado pine lands. After the second growth is cleared off there is 
never any third growth to amount to anything. The land should be sold in tracts of 
sufficient size to warrant a man in putting up saw-mills. 

Q. Why not sell this land in quarter-section tracts?— A. That is a good idea. I 
should limit a man to a certain amount, though a quarter section is not enough for 
milling purposes. Sometimes there would not be 40 acres of timber land on a section. 

Q. Do you use irrigation in your county? — A. We use irrigation to some extent — it 
is being practiced more every year. In tho eastern part of Calaveras County there is 
as good land as there is in the State. It produces crops without irrigation, though if 
you irrigate the land it does much better. You can cut live crops of grass a season 
where you have irrigation. We raise wheat and barley now. We sow early in the 
winter after the rain has fallen sufficiently to keep it alive. We sow our wheat and 
barley from the 1st of December to the 1st of March. That which is sowed late we 
take chances on. Wo do not expect rain much after the grain has got to growing well, 
after about the 25th of March. 

Q. How can the government dispose of those lands that are irrigable lands, that 



PUBLIC LANDS. 127 

caii't be cultivated without irrigation, in such a manner as to induce settlement? — A. 
I think in nearly the same manner as timber lands — in large quantities, so that when 
it was actually needed by individuals they could go to work and bring in ditches. I 
do not think the government nor the State has any right to enter into irrigation en- 
terprises. 

Q. How would you dispose of the pasturage lands ? — A. The only thing that inter- 
feres with pasturage or grazing land is the mineral. 

Q. Are there not pasturage lauds that have no value except for pasturage purposes? — 
A. Yes, sir ; there is a great deal of such land. 

Q. How can they be utilized?— A. By cash entry. That would be the simplest way. 
This trying to compel a man to reside upon land upon which he can't make a living 
is the greatest piece of folly in the world ; it submits him to so much expense with- 
out any good results. 

Q. Suppose he could homestead a sufficient quantity of land for a pasturage farm? — 
A. Well, there are two classes of pasturage land. The sheep men and a great many 
cattle men are so situated that they have to take their stock to the mountains, and, 
as a general thing, away above these timber lands in the summer. The difficulty is the 
land could only be sold in quantities to suit herders who own stock. They can't make 
any residence there. The land is claimed now, and they recognize each other's rights, 
which are not now disputed, if they go into the mountains and stay five months until 
the snow falls. That land will never be useful in any way except the way they use 
it now, and a great deal of it is above pine timber. Take the whole range of pastur- 
age lands, which is situated along the foot-hills. I think the intention of the govern- 
ment is to dispose of it to actual settlers as soon as possible. I think it ought to be 
done with as little inconvenience to the settlers as possible. 

Q. What impediment to the prosperity of the country is there in the fact that these 
pasturage men do not have titles to their homes? — A. All that they have now is simply 
a possessory right, and if they were compelled to buy the land a great deal of this land, 
would be bought. Of coarse it should be sold a,t a low rate. My object would be to 
get this land question into a shape so that we could collect a revenue from the men 
who are occupyiug the land. We think if a man uses anything he ought to own it. 

Q. In your experience are not the high valleys apportioned out and kept by herders 
who recognize each other's rights and understand that the use of the land belongs to 
them, but they do not pay any taxes?— A. That is the case. Most of the land has 
been sectionized, but a great deal of it has not been surveyed. 

Q. What is the principal value of the foot-hills ? — A. Undoubtedly the foot-hills are 
principally valuable for mines. If we had no mines they would have no market, and 
all that the people living in them could do would be to eat what they raised. There 
is no doubt but that mining is the great interest in our part of the country, and the 
mines are certainly in the foot-hills. 

Q. Would you sell the foot-hills for agricultural purposes? — A. That is a very hard 
question to answer. Sometimes I think it would have been better if the land had 
never been thrown into the market at all. My opinion is that it would be well to give 
title to those who now live on those lands, reserving the rest for mineral purposes, or 
else sell it out at cash entry and give a man a title to it. If $1.25 per acre is not con- 
sidered enough for it, sell it for more ; but when he bought it let him have a clean 
title to it. The foot-hills are good orchard and grape lands. 

Q. Are you familiar with placer mining? — A. Yes; I have worked placer mines. 
My opinion about the debris question is simply this : the agriculturists bought their 
lands since mines were discovered and worked, and having bought the land at their 
own risk, knowing the consequences, why should we bother ourselves about it ? Can 
a man go and buy a piece of land with another working on it above and after he gets 
his title tell the other man to stop working ? We certainly should not wish to stop 
all mining for the little damage that may be done to the few farmers below. I do not 
see how it can be made our part of the business. Water will run down-hill and take 
the dirt with it. I do not think there would be much more destruction by continuing 
the mining than there has been already. Of course large tracts of land have been ren- 
dered almost worthless by being washed over, but, as a gentleman testified this morn- 
ing, as all the gulches are filled up it would not make any difference in the future. I 
do not see how the government can do anything about, it ; it is a question which the 
State will have to settle. 

Q. Does the making of non-mineral proof work a hardship on the agriculturist? — 
A. The making of non-mineral proof works a great hardship upon persons who wish 
to take up non-mineral land. We went on our land in good faith, and when we made 
our proof we then received a notice that more non-mineral proof was required. This 
placed us under an additional expense of $50, and no good can result from it whatever. 
It takes just that much money out of our district, and is of no benefit to any one that 
we can see, and we feel that we have been wronged. There may have been mineral 
land obtained for agricultural purposes, but where that has been done it is very easy 
for a man to file an affidavit showing that there has been fraud committed in certain 



128 PUBLIC LANDS. 

cases, and then proceed in the same way as in other cases of adjusting difficulty between 
farming interests aud mining interests. Suppose, for instance, I own 160 acres of land 
to which I have an undisputed right; some man comes along and discovers that he 
may make a few dollars mining on it ; all he has to do is to come to me and say, " I 
want to mine on this land and I will pay you for any damage I may do." These are 
the men that have caused all the trouble. No one is going to run against his own 
interest and say, "No; this gold has got to lay there, and nobody shall get any good 
from it." 

Q. Would not you, as a remedy for that, say that when a man comes to prove up on 
a piece of land at the land office he should furnish the proof of its non-mineral char- 
acter, and having furnished that, and having satisfied the register and receiver and 
the Commissioner of the General Land Office, should not his patent give him an abso- 
lute right to everything from the center to the circumference ? — A. Yes, sir ; I believe 
a man should buy from the surface to the center of the earth ; but where there are 
quartz or any other mines on that land I would recommend that when the mines were 
surveyed it should be in the form of 10 or 20 acre blocks, or in some way so as not to 
have any fractional parts or diagonal lines running across the land, cutting it up into 
such shapes that you don't know what is left. I know one man who has a copper 
claim running across a portion of 40 acres, which renders the land on both sides value- 
less for anything else. Another thing : A gentleman this morning was speaking in regard 
to surveying. Of course, in surveying over hilly land it is almost impossible to make 
an accurate survey. Suppose a section-line ran over top of a mountain on to the other 
side; they would not make an accurate measurement by 20 rods. It is very difficult 
to do that, and how are you going to do it ? They should be liberal in setting their 
stakes, and when a stake is set it should remain there under all circumstances. I 
think where it is surveyed for 160 acres it should always be 160 acres. These corner- 
stakes are set up in the most trifling manner. When you want to get your land sur- 
veyed it will cost you $20 to find where that corner-post was, though it has not been 
surveyed ten years. There should be a mound made or some permanent stake fixed. 

Another thing of which I should like to speak is the timber-land homestead. Now 
it requires a man to plow and plant a certain number of trees every year. That, I 
think, should be construed to mean that where a man filed on a timber-land home- 
stead if he would protect the young growth that is on the land for a certain length of 
time it should operate the same as though he had planted. If that act were construed 
to mean taking care of the young timber growth, why would that not be just as good 
as planting the trees ? Almost all the foot-hills will grow up in timber if it was pro- 
tected. 



Testimony of N. C. Miller, San Joaquin, Cal. 

N. C. Miller, San Joaquin, October 24 (lives at French Corral), made the following 
statement : 

I have lived in the State since April, 1850. 

Question. Are you familiar with the timber land of this country? — Answer. Only 
partially so. 

Q. In your judgment what system of disposing of this land would be the best for 
the protection of the timber ?— -A. I am inclined to think that the system of private 
ownership would be the best as it stands now. Perhaps it would have been better if 
it had been earlier put in force. 

Q. What limit would you place on the amount of the land sold ? — A. I should think 
that as far as the timber is concerned, and of the kind to be called timber land, that 
a square mile would be as little as anybody would wish to look after. If they wanted 
to put a mill anywhere for the purpose of milling, a mile of the timber would not answer 
the purpose. 

Q. What do you think of the policy of reserving this belt of mineral land? — A. It 
seems to have worked so far, and I think it would bo well to continue it. 

Q. You are familiar with this question of the debris? — A. I am as familiar as every 
person interested is. I read everything that is published on the subject. 

Q. To what extent are the agricultural lands being damaged ' — A. II; appears to me 
that a large portion of the damage is already done. A little narrow belt of fertile laud 
along the Yuba and Bear Rivers has been covered, now off. A largo portion has been 
covered here on the Yuba ; they are protected, sonic portions of it. They have made 
a largo dumping ground of a largo area down toward Marysville. It does not seem to 
mo that avo will trouble them very much more from the Yuba. I do not think there 
is near as largo an area- of mineral land on the Yuba washed as a great many of the 
agricultural papers seem to think. There is a larger proportion gone down now than 
what they seem to carry in their mines. Some of them - ined to the idea that 



PUBLIC LANDS. 129 

the whole mountains are -going to come down, while it is only a very small portion, 
comparatively, that can be sent down. 

Q. Can you suggest a remedy ? — A. The remedy that Mr. Von Schmidt suggested 
seems to me to be feasible; that is, to build brush dams in the canons to retain the 
heavier portions there, then to take the silt or sand or slickings, or whatever you may 
call it, on to this red land that lies back of Smartsville, and endeavor to keep as much 
from coming below as practicable ; then there are large swales where there are dump- 
ing grounds for all of the sand that would be sent down for any length of time. 

Q. What is the character of this red land? — A. They afford pasturage to the stock 
in the spring, and after that they don't seem to be of much value. 

Q. Can they raise grain upon them ? — A. I think they could if they had water and 
a top deposit. I do not think they can raise grain upon them as they now stand. 
They appear to be a kind of clay, not fertile at all, but still if they are stocked with 
water during the winter, when the spring opens there is enough grass that grows 
upon them which if not eaten off too closely affords good pasturage for a short time. 
If these tailings could be turned upon them they would be beneficial to them, and I 
think it can be done. The swales might have brush dams constructed, and these 
would strain the water. It would not raise the bed of the river, but turn the bed of 
the stream. I think by building ditches we might take care of anywhere from twenty 
to fifty thousand inches when there is that much water. As a general thing there is 
not more than ten thousand inches altogether that comes down the river. The coarser 
debris should be held back along the dumping ground. 

Q. Would not that raise the bed of the stream considerably ? — A. I do not think it 
would injure the stream at all. It would quicken the flow of the river in places. 

Q. Would not that increase the transporting power? — A. It would increase the 
transporting power for a distance, but wherever it came to a flat place it would de- 
posit again. If there were dams put in where the dumping places are, or near where 
they are, I think they might be made of brush that would stand and bring the tail- 
ings right onto the dumps. 

Q. To whom does this land in the mountains belong ? — A. I think it all belongs to 
the government or the railroads. 

Q. Does the railroad land extend as high up as this ? — A. Yes ; they extend west of 
here to the other side of the river. The Oregon Railroad grant does not extend so far 
as this, but this is the Central Pacific grant. 



Testimony of John TV. Noi'tli, attorney-at-laiv, San Francisco, Cal. 

To the Public Land Commission, Washington, D. C. : 

Gentlemen : I have the honor to acknowledge the receipt of your circular contain- 
ing questions in relation to land entries, &c. I will attempt a reply to a few of them 
as to obtaining title : 

To the questions propounded I will reply in their order as numbered : 

1. My name is John W. North ; residence, San Francisco ; occupation, attorney-at- 
law. 

2. I have lived in the State of California nine years, and all that time at Riverside, 
in the county of San Bernardino, until I came here three weeks ago. 

3. I have sought to obtain title to 100 acres of government land at Riverside for the 
past nine years. I made a homestead claim and settlement on said land in September, 
1870 ; built a house and moved into it with my family in November of that year, and 
have resided there ever since ; my family are still there. I expended on that claim 
$6,000 prior to the government survey, which was made in the spring of 1878 and 
showed 23 acres of my claim to be an odd section. I was on this land nearly six 
months before the railroad grant passed Congress, yet the department gives the best 
part of my claim to the railroad, and rules out my whole claim, including 77 acres on 
an even section. The ruling in favor of the railroad as to the 23 acres is made to de- 
feat my entire claim, including the 77 acres on an even section. My long residence on 
the land and valuable improvements seem to have no weight with the Commissioner. 
This case suggests several wrongs which should be remedied. 

1. Homestead entries should not be confined to " surveyed lands " any more than pre- 
emption entries. Homestead claims should date from " the first act of settlement" as 
well as pre-emptions. 

2. A prior and bona-fide settler should not be allowed to be ousted by a subsequent 
settler or by a railroad company. 

3. The government should not forbid a man to file his homestead claim until the 
survey, and then oust him because his claim was not filed prior to a railroad grant. In 
my case I cannot pre-empt, for I have once filed a declaratory statement. My homestead 

9LC 



130 PUBLIC LANDS. 

claim is ruled out by the Commissioner, and the land is not subject to private entry, 
I am therefore excluded from obtaining title. 

4. I have had some opportunity to observe the working of our land laws during my 
residence in Minnesota from 1849 to 1861. Also, as surveyor-general of Nevada in 1861 
and 1862. Also as attorney in most of the land cases in San Bernardino County for a 
few years past. 

I have resided on the frontier more than twenty-five years, and during that time I 
have been strongly impressed with the fact that our land, laws, instead of being a pro- 
tection to the government and to honest men, offer frequent inducements to perjury,, 
which are very frequently improved. As an illustration of this I will state that while 
riding over the ground where the city of Minneapolis now stands I was shown a claim 
shanty which was set upon an ox-sled, and which had been hauled about from claim 
to claim for different claimants to swear by, they making up by hard swearing what 
they lacked of a compliance with the law. 

5. My personal experience with land cases in the county of San Bernardino has been 
this: In the summer of 1870 I organized a company that established the colony of 
eastern people at Riverside, in that county. We took a dry and worthless plain, and 
by conducting water upon it made it habitable. Settlers who came there in Novem- 
ber, 1870, and some of them soldiers in the late war who settled on government land 
have been trying from that day to this to obtain title, and those on odd sections have 
not yet succeeded. They would have pre-empted the first year if the law had per- 
mitted. But — 

■1st. There were ranch lines to be settled before the township could be surveyed. 
The government, instead of settling those lines, left them as open questions for more 
than twenty-five years. 

2d. This gave opportunity for many corrupt schemes to change lines for the advan- 
tage of designing persons. So dona-fide settlers had to delay all improvements, or im- 
prove at a risk, while capitalists played with the claim. The same expert was sent 
down from the United States surveyor-general's office, as he himself informed me, four 
times to report on those lines, and I think he made a different report every time, as he 
was sent down by different surveyor- generals and on the application of different par- 
ties in interest. The settlers had to wait during this protracted game, and at last 
were obliged to incur considerable expense in order to prevent the sliding of the.ranch 
lines over their improved claims. After about eight years the lines were settled so 
that our township could be surveyed. Then the settlers filed their claims at once, and 
since the 1st of July, 1878, have been trying to obtain title. Most of them are waiting 
still, and near a score of their cases are before the department in Washington. 

All who are on odd sections are decided against, notwithstanding the fact that they 
were on the land before the railroad land grant passed Congress. They then appeal 
and wait. Many common- sense men think it would be better that the first presump- 
tion should be in favor of the dona-fide settler, and that he should be permitted to 
proceed at once before the local land office to prove his claim, and-, if he showed clearly 
that he was a dona-fide claimant, let him have his land without subjecting him to the 
hardship of waiting for years, and in addition to that having to spend the price of his 
land in fighting a powerful company. 

6. Out of my numerous clients I will name one, H. M. Streeter, an excellent citizen, 
who has just been elected to the legislature from our county. Sturges Lovell, a sol- 
dier in the late war, made a pre-emption claim to 160 acres of government land in the 
autumn of 1870, about four months before the railroad land grant passed Congress. 
About four years ago H. M. Streeter obtained from him 80 acres of this land, on which 
Lovell had resided constantly up to that time. Streeter has made valuable improve- 
ments and has resided continuously on the land. 

The law of April 21, 1876, provides for exactly such a case as this, and we hoped 
that Streeter would not be delayed at all. But he was met promptly by a ruling 
against him at the local land office. He then appealed to the Commissioner, who, after 
some eight months' waiting, decided against him, apparently overlooking the law of 
April 21, 1876. He then appealed to the Secretary of the Interior, and has had to em- 
ploy an attorney at Washington. There his case remains, while he, a poor man, has 
been on the point of leaving his claim, with his orange trees almost to bearing, and 
going back to Massachusetts. From present appearances his claim will cost him, even 
if he succeeds, a large share of its value in getting title from the government. This 
is but one case out of near a score in that county where the same experience is had, 
under the same circumstances. 

Another quite common case is where joint entries are to be made, and where there 
is entire agreement between the parties; no conflict whatever. These cases, which 
any local land officer ought to be able to decide in five minutes, are all Bent to Wash- 
ington and delayed as long as the others. These are cases on even sections, where no 
railroad claim comes in. 

Another delay and expense is caused by the law requiring every claimant to adver- 
tise before proving up. These vexatious contests, delays, and expenses do much to 



PUBLIC LANDS. 131 

irritate the people against the government, the administration, and the officers of the 
Land Department. One of these claimants said to me a few weeks since that he would 
prefer to buy land at $75 per acre, where he could get title at once, than to undertake 
to get title from the government where he could get the land for nothing. 

Such circumstances as I have narrated have long since forced upon me the firm be- 
lief that it would be infinitely better for the government and the settler, and also for the devel- 
opment of the country, to repeal all homestead and pre-emption laws and open all public lands 
to private entry, restricting the amount each individual can enter. And the rights of the set- 
tler should be as sacredly guarded on unsurveyed as on surveyed lands. 

When the government permits a man to settle on unsurveyed land, it should not 
then give that land to another party. 

The 7th, 8th, and 9th questions, under this head, I leave to others. 

To the 10th question I will answer briefly. 

10. My ideas under this head are anticipated in what I have just written. The 
object of the government should be to enable the bona-fide settler to obtain title as 
speedily and as cheaply as possible. Under the present system numerous difficulties, 
long delays, and expensive contests are, to say the least, quite too common. Our laws 
under which the settler must obtain title, if at all, have been so often amended, added 
to, and qualified that they have become hinderances rather than helps to the honest, 
straightforward settler in his efforts to obtain title. The very object of the law itself 
seems, in many cases, to be lost sight of, while technical difficulties are multiplied. 

For these reasons I think the attention of the government should be directed to an 
effort to make it as easy as possible for the settler to obtain title before he invests all 
he has in improvements on land that may never be his. 

I think it would be advantageous, both to the government and the settler, to repeal 
both the present homestead and pre-emption laws, and offer all lands at private entry, 
to actual settlers, in such limited quantities as shall suit the various wants of the set- 
tlers, giving to the settler a reasonable time in which to pay for his land, provided he 
lives on it and improves it, but giving to the first settler an absolute right to purchase, 
ivithout hampering him with any disabling laws. 

Very respectfully, your obedient servant, 

J. W. NORTH. 

San Francisco, October 9, 1879. 



Testimony of Judge J. TV. North, San Francisco, Cal. 

Judge J. W. North testified, October 7, 1879, at San Francisco, Cal., as follows : 

I have lived in the State since 1870. In the lower part of the State some portions 
of the land which have been heretofore regarded as not susceptible of cultivation 
without irrigation are being found to be susceptible by more diligent culture. In that 
portion of the State lands that seemed to require irrigation near the coast, where the 
moist winds and fogs are very frequent, are found to need very much less irrigation 
than back fifty miles or so from the coast, where the winds become dry. 

At Riverside, where I resided for many years, irrigation is much more needed than 
in Los Angeles County, where they seem really to need little irrigation. Most irriga- 
tion is needed when the lands are exposed to dry winds, which seem to absorb the 
moisture into the atmosphere much quicker than where there are fogs. 

A large proportion of the lands that are irrigable can be irrigated by the mountain 
streams. The expense of irrigating the land varies according to the distance that the 
water has to be conducted in irrigating canals. Some of the lands that are apparently 
easy of irrigation when you get tbe water to their vicinity are very expensive to irri- 
gate, when you take into consideration the expense of bringing the irrigating canal 
to where it can reach them, and consequently you cannot state precisely how much 
different lands will cost to irrigate ; because the expense of getting the water to them 
varies widely. 

Question. Have you any suggestion to make concerning the destruction of timber ? — 
Answer. I think the destruction of timber is general and wanton. I think there should 
be some effort on the part of the government to restrain it, and take means to protect the 
timber from destruction. It is being destroyed very rapidly and very uselessly. There 
are two sources of destruction; one by cutting, and another by fire. The first one is 
caused by neglecting to survey and sell the land so that persons could go on to the gov- 
ernment land and get what they wish. There would then be no necessity for destroying 
the timber. A large share of the timber that is cut down is left to decay upon the ground; 
while if the lands that bear the timber were cut up and sold, without great difficulty in 
obtaining title — if it was made subject to private entry at once and sold to the people who 
need it, and who would be glad to pay a fair price for it — the timber would be protected 
and taken care of. 



132 PUBLIC LANDS. 

By the policy that has been pursued for a number of years, the timber is being de- 
stroyed very rapidly. I will illustrate : Take the State of Nevada. I was appointed 
the first surveyor-general of that Territory, and while there had never been any public 
lands surveyed at all in the Territory, I was instructed by the Commissioner of the 
General Land Office to prohibit the destruction of the timber on the mountains. I 
endeavored to make the Commissioner understand that that would be wholly impossi- 
ble ; that while every settler was a trespasser the government had recognized their 
title, and that towns and cities had grown up, mines were developing, and that the 
timber taken from the mountains was indispensable to the various industries there. 

I went so far as to tell him that the office which I rented — the very table upon which 
I wrote — was the property of a trespasser. It was wholly impossible to exist here 
without it ; but I could not make the Commissioner appreciate that fact. The destruc- 
tion of the timber went on. 1 might say that three-fourths of the timber upon the 
government land which might have been sold for good prices was never purchased, 
and the government did not seem to take into consideration the fact that these lands 
ought to be sold so as to facilitate mining and to develop the resources of the country. 

I speak of that as an illustration — simply of what has been done in the past ; and 
to illustrate my idea of the importance of throwing open these lands to private entry 
in a judicious way, limiting the amount of land that an individual can purchase so 
monopolists would not monopolize the entire country. 

I want the people that need the timber to get it. The title should be obtainable in 
the easiest manner possible, and it should be open to private entry, setting a limit as 
to the quantity, so as to prevent monopolists from taking it all. 

I know that fires would be prevented if the land was owned by individuals. 

B. B. Redding. I can state that Finns lambertiniana (sugar-pine) is the most val- 
uable timber in the Sierra Nevada Mountains. It grows at an elevation of not more 
than 7,000 feet. It is used for finishing houses. It is shipped abroad for use, even to 
South America. It is a large tree, and never grows in forests by itself. It has the 
peculiarity of growing among other pines sparsely, not in forests. It never grows in 
clumps by itself. Probably in 100 feet square there would be one tree, and the next 
100 feet square there would be another tree. It is largely used for what we call shakes ; 
they are a kind of shingle. 

There are a class of men who traverse these mountains ; going through the mountains 
and finding a large and apparently free-splitting sugar-pine tree they fell it, making 
one cut from the butt, and. if it splits freely into shakes, th ey probably get two cuts 
out of a tree ; if it does not split free, they leave it on the ground to die and go and 
hunt another. That tree, if made into ordinary lumber, in this market sells for from 
$40 to $60 a thousand. It is the most expensive wood we have. These trees are 
destroyed yearly by the thousands, and left to rot and waste on the ground, for the 
sake of getting two cuts off the butt for making shakes. That should be prohibited, 
if possible, for that destruction of our most valuable tree goes on at an enormous rate. 

Mr. Worth. I have observed that same thing. 

Q. Are the timber lands that are high on the mountains available for agricultural 
purposes? — A. They are of no value for agricultural purposes. Their principal value 
is for timber; only they use them somewhat for pasturage purposes. In these timber 
sections there will be some small sections of pasturage land, as in the San Bernardino 
country. There are some small valleys for pasturage purposes and some marsh lands, 
but generally they are valuable only for timber. 

Q. Are these timber lands available to poor men as agricultural homesteads ?— A. 
They are not. The men who go up into these mountains for lumber uniformly sus- 
pend all operations during the winter and go down into the valleys, leaving only one 
man to look after the mill during the winter. 

Q. I understand you to say they are valuable for timber purposes only. Could they 
be owned advantageously in small tracts of, say, 40 to 80 acres by men who have agri- 
cultural farms on the streams '!— A. I think not, for the reason that the men who go 
into the mountains for timber would need larger tracts than 160 acres ; and if they 
were not able to get that, they would be likely to cut the timber from off those por- 
tions which were owned by the farmers while they were at their farm-work. The 
timber lands are too remote, and they would not want to buy lands under these con- 
ditions. In many instances they would have to go from 20 to 40 miles to their wood 
lands and to which there would bo no road, and roads could only be constructed by a 
combination of capital to get up to this timber land. 

Q. What system of disposing of the timber lands would be most advantageous to 
the country— first, in the preservation of the timber; and, second, in the utilization 
of it by delivering it to the people who desire to use it ?— A. I do not claim to have 
made the matter a profound study, but from information and the observation I have 
made, I do not think any system could be so well adopted as to let these lands be 
opened to private entry. I do not know that I would say in uulimited quantities; 
that would be infinitely better than the present system. 

Q. Would you reserve the alternate sectious in the hands of the government, for some 



PUBLIC LANDS. 133 

years, say ? — A. The mere reservation, I think, would hardly keep up the timber as well 
as if it was owned by individuals. They would then have an interest in protecting it 
from fires and from depredations. 

Q. What is the reason that timber must be owned in large quantities to be utilized ? — 
A. A man won't go into the mountains and put np a mill to manufacture lumber and 
make that abusiness, constructing roads to bring it out, &c, if he could not have more 
than 160 acres. He must have land enough to make the profits commensurate with the 
money he has invested in the business. Take it in the San Bernardino Mountains. The 
base of the mountain is seven miles from the city. Then you have to go up the mount- 
ain (they are very steep and abrupt) for five or six miles ; perhaps seven. It is a very 
difficult ascent and roads can only be constructed at great cost. The timber is on the 
northern side of the mountain, while the plains are on the other side, and there is no 
timber worth looking at until you go over the summit. The available tnnber is found 
at an elevation from four thousand, feet and upwards. After the road has been con- 
structed and the timber sent down (it is cut scattering) there will be a comparatively 
small amount to the acre as compared with other sections in the Sierra Nevada Mount- 
ains; so that to get a sufficiently large amount of timber to justify the location of a 
mill and the building of a road, it will be necessary to have thousands of acres of this 
timber land in order to enter upon the business at all. 

Q. Would not the tendency be to have all this timber fall into the hands of a few 
mere monopolists, who do not care either to build mills or construct flumes, but hold 
the timber for a future great rise ? — A. At this time I hardly think it would be, for 
the reason that these difficulties have all been overcome to some extent and the busi- 
ness is being carried on. The lands have been sold to some extent, and there is now 
no opportunity for such a monopoly. I question if a monopoly was attempted if the 
competition with the coast lumber trade would not prevent it, because now the price 
of lumber from the mountains is very little below the price of lumber brought down 
the coast. That would effectually prevent any monopoly of these timber lands. There 
is no parallel between timber lands on the mountains and on the prairies. It does not 
require a great expenditure to get out the timber on the prairie ; not so much as it 
does in the mountains. In the mountains a man would only buy the timber to utilize 
the wood, but on the prairie a man cuts off the timber and still has the land. 

Q. What is the extent of the timber belt in the Sierra Nevada Mountains ? — A. The 
available pine land is about live hundred miles long, with an average width of thirty 
miles. That* is the timber belt that is available for saw-mill purposes on the western 
slope of the Sierra Nevada Mountains. It is broader at the north, and narrows south- 
ward until it runs out into the San Bernardino Mountains. 

Q. What land system can the United States adopt which will secure eventually the 
redemption of these lands and throw them into the hands of actual settlers ? What 
are the conditions under which agriculture can be practiced? — A. While I have been 
in favor of the pre-emption and homestead laws, and have observed their practical 
operations, I am forced to the conclusion that the best method of disposing of the gov- 
ernment lands — of all lands that are irrigable, especially those that require large ex- 
penditure of capital to bring the water to them — would be to make them subject to 
private entry ; for while without irrigation they would be comparatively valueless, 
yet with irrigation they become valuable. In order to induce the requisite amount of 
capital to be expended for purpose of irrigation it will be necessary for the parties 
to get the land in tracts large enough to make it an object to spend the money requi- 
site for the irrigating canals, and it will be infinitely better if the land were subject 
to private entry. 

Many companies of individuals — say, for instance, a colony at the East — wish to 
come into this State and to find a place that can be irrigated by the expenditure of 
capital, and I speak of enterprises of which I am familiar; I know people that would 
be very glad, indeed, to enter the requisite amount^of land capable of irrigation (these 
lands are now worthless) if they could get a title without difficulty and immediately, 
so that when they enter upon this enterprise they would know that they would be 
safe in so doing and not have a long and protracted struggle to get a title from the 
government. If they could get these lands at private entry, there would be thousands 
of acres sold by the government for actual settlement and improved by individuals, 
whereas now these lands are unoccupied and unimproved. 

I think to have these lands subject to private entry would encourage settlement, 
would encourage colonies, and would encourage enterprise much more than it does 
under the present system. There is not the least danger that monopolists in this State 
would come in to purchase the land for the simple purpose of owning and controlling 
it for themselves and their children, but they would go on to it and get possession of 
it for the purpose of investing their capital, and eventually of selling the land and 
water in small tracts to small settlers. I would say that the object of capitalists in 
investing money in land in large quantities and appropriating the water in large 
quanties for irrigation is ultimately to sell both the land and water to small settlers 
at a profit. 






134 PUBLIC LANDS 

Q. What have you to say about the water rights ? — A. I have my own idea about 
them. The idea of Mr. Redding that the water should be owned and controlled by 
the State I fully concur in. I think nothing would be so desirable as to have the 
water rights administered and taken possession of by the State, and controlled for all 
future time by the State. Now there are difficulties arising, and, as Mr. Redding sug- 
gested, it will be the source of more litigation in this State than most anything else, 
and it is a subject upon which the vital interests of large settlements depend, and the 
settlement of that question has become one of vast importance. 

I would say that the constitution of this State provides for the organization under 
the general law of corporate companies, subjecting these compauies to the control of 
law by a specific provision of the old constitution, which says "that any law passed 
under this constitution, either providing it be for or against corporations, shall be 
subject to amendment or repeal by the legislature." That subjects all corporations to 
the control of the legislature, even under the old constitution, and the new constitu- 
tion is still more stringent, subjecting corporations to the control of the legislative 
power. 

Now, in regard to the monopoly of the water by corporation companies, this diffi- 
culty exists at present. My idea would be to escape that difficulty by the plan pro- 
posed. To illustrate this proposition I might refer to the Riverside settlement, which 
I started myself, and therefore I am familiar with that above any other enterprise. 
The plan was to organize a corporation, to purchase the land and appropriate the water 
for the use of a colony — to supply the settlers in the colony, within certain townships, 
with water. The water was so appropriated ; but as time went on some settlers located 
upon government land, and our irrigating canal had been taken across the government 
land, the government giving us the right of way for this irrigating canal. For five 
years or more settlers were supplied with water during my administration as president 
and as general agent of it. 

To those on the government land and on the land the company sold to settlers the 
water was supplied at the same price, with this one condition attached to those settlers 
on the government land, which they acceded to the first year, that they should make 
their own distributing ditches. They did that at once, and then they were supplied 
for more than five years on the same terms as our settlers. After my health failed I 
was compelled to leave the enterprise, and then new capital came in and the enter- 
prise was enlarged. Then the difficulties arose. The parties wished to sell the water, 
they wished to sell their lands, but they made their terms such that the s'ettlers on the 
government land could not possibly accede to them. 

The settlers on the government land were taxed $20 an acre to put them on a par 
with the settlers on the land sold by the company, thus discriminating against the 
government, for the government land would not have been sold without this irrigating 
ditch had been there. 

In the discussion of this matter, when the litigation commenced, the company as- 
sumed this attitude : A few persons have come from three to four thousand miles and 
settled upon the lands ; they have purchased from the company ; the company takes 
the position that they are not under obligation to sell a drop of their water to settlers, 
even if they have purchased the laud, because there was no civil contract in the pur- 
chase of the land that required them to do so, and that, therefore, they were not bound, 
even if the enterprise was commenced for the very purpose of supplying the land 
with water, and notwithstanding the laws of the State that water must be appropri- 
ated and used for useful and beneficial purposes, and that when it ceased to be so used 
the right to it also ceased. The company assumed that attitude. 

There comes in a very important question to settlers who buy laud of corporate 
companies. They have got their arrangements made, trees bearing, their homes built 
up, their improvements made, and the company says : "We are not under obligations 
to furnish you a drop of water, and will not unless we choose to do so." Then all those 
settlers who have been induced to settle in that manner on the lands sold to them by 
the company will bo broken up. Suppose they take it in this light and claim a right 
to cut off any settler's water supply. This destroys his farm ; and this is an instance 
where a man is a slave. The laws of the United States and the laws of the State 
ought to provide a remedy. There should be protection to the settler, and there 
should be nothing left to the mercy of any corporation. This matter is now being 
tested in the courts; it is now before the supremo court of this State, and has been 
pending for two years. 

Q. Now, the land and water do not go together; we have a water property and we 
have a land property. Throughout Ihe whole urea where irrigation is necessary in 
the United States all agriculture is then dependent upon the water, and in all the irri- 
gable country we have two properties independent of each other. In all of that same 
country, too, there is more land than there is water to serve it, and that makes the 
water companies independent. If you do not want it on your land they will take it 
somewhere else. In view of these conditions would it not be better for the water and 
land to go together, that title and right to the water should inhere in the land?— A. I 



PUBLIC LANDS. 135 

think it would be much better to have the land and water go together. If the land 
and water shall be entirely separate in years to come, my judgment is that there will 
be thousands of instances where very valuable fruit trees and vineyards will be left to 
perish for the want of water, unless there is some control by the State over, that water 
and compel the use of it for the settler. 

Mr. Bedding. If you will get some intelligent Spaniard from Southern California 
you will find a system which works exceedingly well. 

Mr. North. I think practically that water should inure in the land. In San Ber- 
nardino County the mode is this : Here are settlements along the plains on either side 
of the stream. From time to time as new settlers come in the distribution of the 
water wants to be adjusted anew. For this purpose commissioners are elected. When 
any question of ground arises these water commissioners meet and determine how 
much water is needed and give direction to the different districts, and they have 
water masters who control the distribution of the water to a particular neighborhood 
lor which each is selected. A water master has charge of certain ditches under the 
control of the water commissioners. He has directions to apportion out to each indi- 
vidual the particular amount of water he is to receive, and so it is arranged from 
year to year. This is the general law. The only private corporation for the distri- 
bution of water is at Riverside. 

Mr. Seddixg. This belt of irrigable land is 500 miles by 30 miles. That would be 
16,000 square miles, about 98,000,000 acres. It is not likely that any company would 
monopolize this amount of land. 

Mr. North. As a general principle the water should go with the land, if it is to be 
so regulated as to distribute it when needed. That could be done by water commis- 
sioners. 

Q. What do you think the condition will be here in fifteen or twenty years if the 
present state of affairs continues ? — A. I think it will produce a very general embar- 
rassment, and in many instances ruin, and in a great many other instances anarchy 
and communism. There would be lots of men driven to desperation who would seek 
to secure by force and violence what the^ deemed their inherent rights. I think the 
national government should regulate it, so far as the government lands are concerned, 
hereafter. They now give the right of way for irrigating ditches ; they could append 
certain conditions to these rights and, so far as they have any control, use it in the 
right direction. Mo.st of the water would be a subject for State action. The only 
remedy I see would be to have all water rights in the State condemned and purchased 
by the State under eminent domain. 

Q. What suggestion have you to make concerning the timber and pasturage land? — 
A. Concerning the pasturage land, I concur with Mr. Redding's statement. 

Q. Where the timber lands and pasturage lands were reserved, would you reserve, in 
the hands of the government, the mineral rights that might attach ? — A. It seems to 
me it would be wise to reserve the mineral rights, so that if a man should wish to 
have just the timber land, I don't think it should be sold for anything else. I would 
give a prospector an opportunity to prospect upon the land, subject, of course, to the 
rights of the holder of the timber upon it. Under the present law the mineral is re- 
served. I really think there is no system that could be adopted that would not, in 
many instances, in the hands of some men, work to the prejudice of the community; 
but in view of the enormous difficulties now existing, I cannot help thinking that there 
would be much less of it if the regulations by which lands could be entered permitted 
the title to be obtained at once by private entry. The interminable delays and long, 
tedious, and vexatious litigations, and, where there is no litigation, the vexatious labor 
of getting a claim through the departments is all very oppressing. There are thou- 
sands of men in this State to-day being crushed on account of the expense of getting 
titles to their land where there is hardly any contest at all, having to wait and wait 
from year to year, where they should get the title at once. I think the parties who 
have the disposition to improve the lands and make homes, if they could obtain titles 
at once it would be an immense advantage. The people are obstructed continually 
now, and if there was facility by which honest men could step forward and obtain 
homes rapidly, the development of the country would be fourfold to what it is to-day. 
That is the way it looks to me. I have lived on the frontier for twenty-five years, 
and during that time I have had more or less to do with obtaining titles to govern- 
ment land, and this is the result of my observation. There is no obstruction so great 
to settlement as the getting of titles. The unsettled condition of the ranch lands, 
under Spanish grants, is a great drawback. In my case everything had to be kept here 
obstructed for eight years, before I could get title to the Spanish ranch land, and 
there are very few of "them that now have titles. There are a score of them whose 
cases are now hung up at Washington awaiting action ; waiting on questions that any 
intelligent local land officer could settle in five minutes. How much longer they will 
have to wait I do not know. 

Take a case of double entry, where two parties are found upon the same local sub- 
division. They must make a joint entry of it. They agree perfectly between them- 



136 PUBLIC LANDS. 

• 

selves ; there is no contest whatever. They agree exactly as to the position of each, 
and all that they want is to let the department give either one of them title, that they 
may divide it. All that has to be sent to Washington, although the local land officer 
could decide it in five minutes, and there it sleeps in the Land Office for years. 

I do not see the propriety of sending these cases to Washington at all. They could 
he settled by any intelligent local officer. If there are defects in the law they should 
be amended. As it is now, if a man ventures anything he may lose it all by some rule 
of the department. After a man obtains title it should be a real, genuine title. 

I have within my knowledge something of an illustration of that kind, where the 
unsettled condition of Spanish titles and Spanish lands will illustrate that feature of 
the case. There is a portion of the land on the lower bank of Santa Ana River, in San 
Bernardino County, where a considerable pordonof government land lies between two 
ranches, and there has been a dispute for years about that land. It is said to have 
existed for more than twenty years. One of the ranch-owners claims that the line 
should extend to one place, and the other claimant declares it should extend to another 
place. The government settlers then came in and declared that neither of them were 
right. This has been running for more than twenty years, and the result is that a few 
persons have gone on there with little stock, and, feeling the uncertainty of their po- 
sition, they have made no improvements amounting to anything at all. They have 
waited and waited, and under this system it seems there like desolation ; whereas, if 
it had been entered by individuals, it would have been a thrifty portion of the county. 

Up to this past season that line has been unsettled. It has been settled since ; the 
surveyor- general went down there and examined it for himself. Now the settlers 
know where they are ; some of them are on and some are off their proper places, but 
now they can go on and improve understandingly. That incident is one out of many. 
The way it affects the other government lands is this : Until the lines of the ranches 
are settled the government lands cannot be surveyed officially, and therefore no home- 
stead claims can be filed and no farms can be made available ; no titles can be obtained 
from the government, and everything has to wait and wait. The pre-emption claims 
cannot be transferred, and therefore a claimant must hold on. 

Under the decision of the Supreme Court of the United States, where the lines of 
the Spanish grant are undefined — for instance, where a man had originally eleven 
leagues and the description indicates fifteen leagues— he has the right of ejectment all 
over the fifteen leagues until it is determined where the eleven leagues are. There- 
fore his object is to defeat the survey and keep off settlement. The courts have de- 
cided that they cannot settle on that land until his eleven leagues have been deter- 
mined upon ; and thus he holds the fifteen leagues and fights off surveys in order that 
he may hold the whole land. This Commission cannot do any wiser thing than to rec- 
ommend a speedy mode by which the Spanish grants in Arizona and New Mexico can 
be settled at least before men now born die. 

To illustrate the difficulties that spring up now under these delays: Take that 
Harupa case. It was hanging more than twenty years. The grantee was not satisfied 
with the west line of the ranch as it was surveyed by the surveyor ; he applies for a 
re-examination of that line, and the surveyor- general sends down an expert from his 
office to run it ; he goes down there and reports in regard to it and in regard to the 
initial point of Pechapa. This was the initial point of the survey of that range. The 
expert reported that there was no doubt about that point ; he goes back, and then the 
thing hangs for more than two or three years, when another application is made for 
an examination of the line, the railroad company having objected to the confirmation 
of the survey because there are bends where there should be straight lines. If these 
lines were straightened it would throw out some lands that the railroad company would 
be benefited by. 

In the mean time the expert is sent down again to examine it, and he reports in favor 
of straightening the line, but the decision of the Supreme Court prevents the railroad 
company from getting any of it, so that their interest in it was lost when a new in- 
terest springs up. 

Following this second examination of the land by the expert, the owners of the 
ranch claim that they were "injured by straightening the lines, and call for a re-ex- 
amination. Then the same expeit is sent down, and reports as to the cast lino that it 
should not have been straightened, and reverses the previous recommendation. Sub- 
sequently to that another application is made to remove the pachepa, the applicant 
stating that it is not on Pachepa Hill, but (hat the real point was two miles easl of 
that. The same expert is sent down again and reports that the eastern point was the 
one. Then settlers make a sharp conflict to prevent the removal of that pachepa, 
that had been settled there after twenty years, and this expert told me himself that 
he had been sent down four times to report upon the lines of that one ranch, and I be- 
lieve he made a different report every t [me. 

That illustrates how new difficulties spring np by these delays, difficulties that 
were not dreamed of in the start. 

The settlers are kept constantly iu trouble by these delays. It seems to me that in- 



PUBLIC LANDS. 137 

asinuch as these difficulties must be very crippling the sooner and quicker they are 
settled the less difficulty they will have in the future. 

Mr. Bedding. A law should be passed that the claimants of Spanish and Mexican 
claims in Arizona and New Mexico should, within one or two years, file a plat of sur- 
vey making those claims by definite and natural bounds, and those boundaries should 
be those within which the claims should eventually be fully satisfied. These persons 
can settle outside of these boundaries with safety. I would make a failure to com- 
ply with the law a forfeiture of the grant. There should be a limit of time within 
which persons having claims living in New Mexico or anywhere else should be com- 
pelled to file a plat of their claim. If a man has 11 leagues and wants 15, the 11 
leagues should be found somewhere within the 15 leagues. Then there should be a 
statute of limitation as to time within which he should be compelled to find the 11 
leagues. 

Mr. North. The department, as I understand, has to pass upon all these questions. 
It seems to me the sooner they can take some steps about it the better it will be for 
all hands. 

Mr. Bedding. This question cannot be settled in the courts, because the court has 
no knowledge of the locality. Some cases that went into the courts nineteen years 
ago are still there. 






Testimony of TV. R. Norway, deputy surveyor, Los Angeles, Cal., relative to Atlantic and 
Pacific Bailroad land grants andpaitoral lands. 

W. H. Norway, deputy surveyor, examined. 

I have been deputy surveyor since 1864, some fourteen or fifteen years. I am famil- 
iar with the county covered by the forfeited grants to the Atlantic and Pacific Bail- 
road Company perfectly, and the grants to the Southern Pacific Bailroad also. 

The terms of the Atlantic and Pacific charter are to tide-water, that is to the Pacific 
Ocean. They surveyed also a line by Joledad Pass, and it strikes tide-water at Santa 
Buenaventura. They have not run to San Francisco, but the land is suspended even 
after striking tide-water. We have always contended that they had no right above 
San Buenaventura. There are a good many fractional townships that have been sur- 
veyed that have been suspended and none of the odd sections can be entered and the 
even-numbered sections are held at $2.50 an acre. 

This thing is working very badly with us. I have understood that the agents and 
attorneys of the Atlantic and Pacific Bailroad have offered to take the sum of $40 for 
their right to any 160 acres in their grant. I know some land to which they did waive 
their right, that of Newbold. I have been told that one Luce, of Washington, is the 
attorney, who is authorized to perfect claims at $40 for every 160 acres on behalf of 
the railroad grant — for that cum to get a release from the road. 

I corresponded with Coffin, the land agent at Saint Louis of the Atlantic and Pa- 
cific Bailroad. I asked him if he could waive the company's right to certain town- 
ships, they being fractional and small portions having agricultural land and a few 
settlers wishing to procure titles. He answered me that he was not authorized to 
waive any right, yet in all probability the settlers would never be disturbed in their 
occupation of the land : that the road was in the dim, distant future, even if it had a 
future. I sa w some of the letters from this Luce firm in Washington to Mr. Cooper, 
but did not take such particular notice of them as to state their contents now. I can- 
not state the language of the letters now, but either the letters or Mr. Cooper informed 
me that he was prepared, through parties in Washington, to make a release upon these 
terms of the Atlantic and Pacific Bailroad interest. He asked me if I wanted to en- 
gage in the business, and I told him I did not wish to engage in the business, for I 
thought it was a system of blackmailing. I sent a copy of this letter to Coffin, and to 
Booth at Washington. He introduced a sort of generaf bill, and not a special bill as I 
had wanted. He also referred the letter to the Commissioner, who stated that he had 
no authority to restore the land without legislative or judicial action. Luce wrote 
Cooper that the Atlantic and Pacific Company intended to avoid the forfeiture of 
their grant on the ground that the government, had failed in its obligation to extin- 
guish the Indian title through the Indian Territory, and consequently they had the 
right to not build the road ; that they had not wrought the forfeiture. 

There is not a foot of land in Santa Barbara or in Ventura County but what is 
included in this withdrawal of the Atlantic and Pacific Bailroad, and yet these lands 
are rapidly filling up with settlers. 

Whenever there is made the survey of a township, and the same is returned ap- 
proved, there ought to be some way by which parties will be advised that the map is 
on file. For my own part, I have* been advised through the courtesy of this office ; 
but there ought to be some authority of law for it. There should be some provision 



138 PUBLIC LANDS. 

by which the filing of plats should be published in a paper near the claim, and the 
time should begin to run from the expiration of this notice. It might be well to pub- 
lish such notice a month in some weekly newspaper. In point was the case of a man 
who told me yesterday that for want of such notice he failed to file, and the Southern 
Pacific Railroad Company got his land. 

In this district the local officers notify us and we give notice to the settlers, but all 
this is a mere matter of accommodation. There may be many settlers that I cannot 
reach. And then, if a settler sees a notice of filing in a paper, he will pay more atten- 
tion than if told by an individual. 

The last maps I sent in I got my draught three weeks before the map reached this 
office. 

And now, to go into the matter of the segregation of the petroleum land from the 
agricultural land, it is very difficult to make this segregation. I know of some parties 
who are holding 160 acres as agricultural also filed a mining claim upon it, and also 
took up adjoining claims as miners ; and then these hold 160 acres as pre-emptions. 
Those remove on the petroleum lands, the department having ruled that petroleum is 
a mineral. They renew their notices year after year under their local mining laws. 
They got me to go out and show them the lands. 

My policy would be to dispose of the public land as fast as possible, and there should 
be some law by which parties should take up more than 160 acres of grazing land. 
Now, along the rivers they can get water, but the balance is good grazing lands ; and 
I know of parties who would purchase the whole township, 3 north 21 west, if it could 
be had for grazing lands. But there is no water upon it, for they have sunk 100 feet 
and failed to get water. I know of one party who wanted to take up 160 acres on 
the run, and said he would be willing to take a portion back of the ranch here at $1.25 
an acre. 

There is scarcely any land in Santa Barbara or Ventura County that is fit for agri- 
culture that has not a settler upon it, but no means exist for acquiring title. But 
other lands remain unsold ; while, if they could be sold at $1.25 per 4 acre, many persons 
would take up those lands for stock purposes, and then the government would get a 
good price and the State would get her taxes. 

I believe in selling the government land, and if there are settlers, giving them the 
preference. Beyond this I should recommend the graduation law to dispose of the 
public lands, and I could not suggest any other system that would be so well adapted 
to the case. 



Testimony of George A. Nourse, at San Francisco, Cal. 

George A. Nourse, attorney at San Francisco, Cal., testified October 8, 1879: 
Question. By what method of administration system can the timber lands be best 
utilized, as that the timber necessary for the industry of the country can be used and 
at the same time the greatest amouut of timber be preserved from destruction and 
waste ? — Answer. My impression is that the sale of the timber lands will be decidedly 
the best instrument to prevent the waste. , I think when men can own the land they 
will take a great deal better care of the timber than they will of the government tim- 
ber ; and the sooner the government can get the timber lands out of its hands and into 
the hands of persons who will manufacture it, the better it will be all round. As long 
as it is in the hand of the government, it will be stolen. I have had something to do 
with lands all the way from Minnesota to California, and in every State I have known 
the universal experience is that government lands are considered fair booty. My idea 
is that while the people on the timbered lands are cutting and slashing upon govern- 
ment timber they feel that they are liable to be stopped every moment, and hence 
they have no interest except what they can take, and they strive to get all they can ; 
and they take only the best trees and only the best portions of the trees. They will 
waste a great deal of the top and of the butt, and the tops being left on the ground 
there is much more liability to fire, and so in every way the timber is wasted and is 
used wastefully without any economy, as would not be the case if it had passed into 
private ownership. Probably if the timber was properly protected it would furnish 
several times as much lumber for the convenience or necessities of a community as it 
will under the present system. If it was owned by individuals who themselves had 
an interest in economizing for manufacturing uses, (lure would then be no stripping 
from the government lands. It must be remembered that the authorities at Washing- 
ton have done very much to bring about this state of affairs. I attempted to check 
depredations when 1 was attorney-general in Minnesota, to that extent that I sent a 
man up to the woods — measured every stump, so that we had accumulated by the 
spring data of the amount cut by each lumbering party. The next thing we knew, 
the depredators had taken the alarm, and after trying in vain to stop the proceedings 



PUBLIC LANDS. 139 

in the State, they started on to Washington, and on ex-parte evidence, without even 
the courtesy of a notice from the Interior Department to us, they were allowed to com- 
promise by paying a ludicrously small amount. We found it utterly useless to prevent 
these depredations. I mention this to show that the government is responsible for the 
idea that has grown up that it is the right of individuals to take timber. The thing 
that perplexes me most is how to manage the sale of timber land so that it shall not 
pass into the hands of monopolies. Almost all previous laws intended to prevent that 
have proved to be a dead letter. I am not prepared to say how that can be prevented. 

Q. Could this timber be profitably and individually owned by farmers who live in 
irrigable districts ? — A. Very seldom. I do not see what they would do with it. Their 
lands are a long way from the timber, and to manufacture lumber in this State — to get 
the timber and manufacture it — requires a larger expenditure than any place I ever 
saw. It costs too much to build mills away, up on the mountains and in the construc- 
tion of roads, &c. They bring logs here a long distance, and they have flumes as well, 
which are very expensive. This fluming the lumber is very expensive. The timber 
that grows on the mountains has to be brought down. On the coast, among the red- 
woods, which is not on very high land, they have to lay clown railroad tracks ; they 
have to do it in the summer-time on the dry ground, and haul the logs on the tracks 
a long distance. Sometimes they put up the mills and then build railroads to bring 
the lumber out, and in this way a large investment has to be made. No man can be 
in a profitable business in lumbering here without a very large investment, running 
up into the thousands and tens and sometimes hundreds of thousands of dollars. There 
is on the coast an additional outlay in the building of chutes, &c, for loading. Then 
they have to have mooring grounds for their vessels ; so that it is a tremendous opera- 
tion to get ready for successful lumbering on the coast. There are companies that 
have hundreds of thousands of dollars invested in materials and the appurtenances 
for lumbering. 

The lands should go into the hands of persons who are engaged in timber enterprises. 
It is not worth while to go into milling operations unless the owner can have timber 
enough to supply him a great length of time. It would be foolish to go into these 
large investments for a small amount of timber. Practically, the mills on the coast 
have got control of the valuable timber, which naturally goes each to its own mill. 

Q. Is the land, as land, of any value ? — A. There is much more land in this State 
that is capable of irrigation. If you cut off the timber the land is left in large tracts, 
and for the present nobody would, go to cultivating timber lands after the timber has 
been cut off. Persons sometimes now go in and say that the land is agricultural land; 
that they are cutting the timber off in order to cultivate it. But I do not think that 
timber land is good for agricultural purposes as a general thing. 

Q. What interest would a man have in keeping the timber on it — why would he not 
sweep all the timber off? — A. Because he wants to leave a good growth to grow up 
and keep up the supply of timber; he wants to.use it as economically as possible. In 
seeking to protect his timber that is now valuable he must necessarily protect the whole 
ground. He cannot protect only a few trees and let all the rest around him burn up ; 
and in so doing he protects the entire growth for the sake of the young growth, which 
will finally be worth something to his children. I do not know whether there is any 
young growth here that will in a generation be of any value ; but it has proved so in 
Maine, and it may be so here. I would say, in regard'to the small owners of land, that 
there is a class of men that have done something with lumber. There is a class that 
you might call permanent settlers, and not a class that add very much to the wealth of 
the State. They go on to a piece of land, claim to be pre-emptors, fell the trees, make 
railroad-ties, shingles, spokes, &c, and so on every quarter section they get work to 
do, and turn their work into money for a number of years. I doubt whether such a 
population, whose residence is so temporary, is especially desirable. They are cer- 
tainly not so desirable a population as those who cultivate the land. 

Q. What is your opinion of the irrigable lands? By what system can they be dis- 
posed of? — A. I find it very hard to make up my mind. I will say this : that the pop- 
ular cry and prejudice against those who purchase large bodies of land with the 
intention of constructing irrigating canals and ditches, and who have spent large 
sums of money in that way, is unfounded. I think those men are doing the best work 
in the State. I think that at present it would be very nearly impossible to get irriga- 
tion works, to any considerable extent, by the action of small owners. My experience 
with the farming population has been always that it is very difficult to get them to 
work together ; their solitary lives make it very much more difficult for them to work 
together than for people in the States, who are in the habit of co-operation. I know 
of the irrigation works of Messrs. Haggin & Carr, and Livermore. They have very 
extensive canals for irrigation in Kern County. It is my impression that they will be 
the men who will make the least out of the improvements they are making. The 
expenditure is very large and the return is remarkably small. All these irrigation 
works are being done at the expense of wealthy men, and they are going to result in 
the benefit of the future owners of the land. 



140 PUBLIC LANDS. 

Q. What are the difficulties in the way of settling and utilizing the pastoral lands 
by actual set:lers? — A. The trouble is, that under the present laws no man can get 
more than 160 acres by a homestead or pre-emption, and this is a ridiculously" small 
territory to give a man to live on, merely for grazing cattle. The pastoral land here 
is not like the pastoral land in the Eastern States, that grows white clover. It takes 
acres and acres to support one animal, and especially when it gets toward fall. To 
have enough stock to support a family you must have much more than 160 acres, 
taking the average hill pasturage lands. A man cannot do anything with less than 
several sections. I should think that four sections would be none too much. Of the 
pasturage lands now owned by the United States, four sections would be as little as 
any man could support a family on. Four sections would be sufficient in most places 
in Nevada, with such little cultivation as they could get, where they live very roughly 
and away from civilization. 

Q. Would it be well to reserve the subterranean rights until tne lands are taken 
up ? — A. I do not think that if we should sell the timber and pasturage lands in large 
areas that would include the minerals. My idea is this, as I have stated, that the sale 
of the pasturage lands should not prevent other persons from prospecting for mining 
or taking up mines under proper restrictions, so as to indemnify the owner for damage 
done, and they should not be excluded from the privilege of locating mineral there if 
they do it in the ordinary way. The parties taking up the land for pasturage or agri- 
cultural purposes should be put on the same basis as the prospectors. In the matter 
of irrigable lands in the foot-hills, I do not think the question of mineral ought to be 
opened after the patent issues. 

As Mr. Redding has told you, Commissioner Drummond declared 200,000 acres of 
land mineral, and thus compelled men who wanted to locate upon it to prove it non- 
mineral. The pre-emption law simply excludes from its operation, so far as mineral 
is concerned, lands upon which there are any known salines or minerals, clearly leav- 
ing open to pre-emptors lands upon which there may be salines or mines at present 
unknown ; and when a Commissioner or any executive officer interpolates in any pat- 
ent such exemption, if there is no other authority of law for it, it seems to me that he 
attempts officious legislation, and it seems to me, too, that the law as I understand it is 
right in that respect, and when a man has his pre-emption patent that he should own 
his land. If there is any mineral found upon it afterwards, that unless the patent is 
set aside by due course of law for the reason that the pre-emptor knew at the time of 
making his entry that there were salines or mines concealed on it to his knowledge, 
except in such a case the pre-emptor should receive a title to all there is upon it. 

I wish to say a word about another matter. I noticed that your printed questions 
refer to obtaining title. I think that one great difficulty is that there is no compulsory 
process for the attendance of witnesses. I think it is very necessary to the ends of 
justice that in contested cases before the Land Office the land officers should have that 
power. For instance, there may be a person who knows all the facts that are neces- 
sary to give one claimant his case, but he is a friend of the other claimant and the 
first one can't compel him to testify. Then I think it is very necessary that better pay 
be given the clerks in the Commissioner's office, who have to pass upon the questions 
involved in these contests. Frequently it is a contest over homestead or pre-emption 
entries or State locatious, &c, and I think the pay should be such as would secure the 
services of more competent men than you are likely to get ior $1,800, because some or 
the most involved questions of law come up in those cases and their determination 
requires men of real judicial 'ability. I do not suppose you can expect to get that 
ability unless you give them better pay. However efficient and competent a man may 
be as a man, no clerk who is there now, if he is ignorant of the law, is competent to 
pass upon these disputed questions. The Commissioner can't, of course, be expected 
to examine these cases. The duties of his office in regard to the mere matter of in- 
terviews are so onerous as to take up most nil of his time, and he has to depend upon 
his clerks. 

There is another matter. Our surveys arc, miserably executed and unreliable. My 
own impression is that they are likely to remain so until the surveyors shall be paid 
a price that will enable them to mala' yon a reliable and accurate survey without loss 
to themselves. I do not think the mere paying of a higher price- will insure an ac< u- 
rate survey, but it will make it possible. As 1 understand the case now it is hardly 
so. 1 have had occasion, by a casein conrt recently, where it was necessary to find 
the, corner of a township (I think it is the corner of townships 15 and 16 north, in 
ranges 16 and 17 west, on the Mount Diablo meridian), to examine this question of 
surveys. In the case 1 cite, where the lines came together, it is impossible to locate 
the corner of the townships with any degree of certainty. 1 have come to the con- 
clusion that no stake was ever set there. The work was done long before the present 
surveyor-general was in his office. The survey was made by private individuals and 
paid for at the time by one McLeod, on the fortieth standard parallel, and the meas- 
urements that have been made since show it to overrun enormously. Some years after 
that a contract was let *o this same man to run that line officially, and he never made 



PUBLIC LANDS. 141 

any other survey, but, as will appear by the files of the office, he filed the field-notes 
of the survey made some years before the contract was made. He took these field- 
notes and used them as the field-notes of the survey under the contract, no trouble 
being taken to alter the dates or anything, so that upon its face it presents the ab- 
surdity of a survey having been made before the contract for it was let ; and those 
corners have never been found by anybody that I can learn of, and the location, as 
fixed by the field-notes and as fixed by the field-notes of the subsequent survey that 
was run north and south between these two townships, will vary in some cases 30 or 
40 rods. If it is located as the field-notes would seem to say, theu section 36, in the 
southeast corner of township 16 north and 17 west, will have straight lines nearly at 
right angles to each other for the north and west lines, while its east line will shoot 
off in nearly a southeast direction, and the south line in a direction considerably south 
of east, and it will come together at an acute angle a long way from where the real 
corner would be if the section was made square. Now it certainly seems to me that 
before it had been admitted to proof at all it should have been examined in the field 
by some person other than the surveyor. 

Q. You have been engaged in the practice of law and probably know the forms of 
procedure in obtaining titles to land from the government under the homestead and 
pre-emption law. Won't you tell us what you think the difficulties are in obtaining 
titles ? — A. I had not thought much of that, but 1 will say this : That which is said by 
those endeavoring to obtain title under the pre-emption aud homestead laws must be 
taken with some grains of allowance. There are a vast number of persons who will 
endeavor to get title that way who are not tona-Jide settlers ; and many of those diffi- 
culties in the law, especially those which require settlers in acquiring homestead land 
to stay On the land, are necessary for the reason that without these requirements they 
would make it a mere matter of speculation ; and if the theory of selling the land oft 
at low prices or even giving it to actual settlers is at all correct, I do not see very well 
how that result can be obtained without these precautions and without these require- 
ments that are considered so onerous. There are general laws which are adapted and 
tend to secure good faith, and the rules have to be pretty strict. I will say this, that 
I have seen and heard more hard swearing in. pre-emption cases and more fraud on the 
part of the United States pre-emption settlers than I have in any other class of people 
1 know of. It is due to the fact that so many dummy cases are made ; it is not done 
by actual settlers, but by persons who are making fraudulent entries. There are a 
great many of these people. 

Q. Do you think there is any man living who can take the pre-emption act oath of 
1841 and the proof that is ordered in that act, and do it without committing perjury? 
— A. I don't see the difficulty. If the government chooses to make a conditional sale 
and you choose to purchase upon those conditions, I do not see why a person need take 
it. The government has the right to sell it subject to those conditions; the require- 
ments of the law only relate to the intentions of the person at the time of entry. I 
do not know of any condition after the entry is made ; there is no subsequent condi- 
tion that I know of. I have never so interpreted it, and I do not know of any re- 
quirements that will prevent a man from selling the land afterward if he wanted to. 
A man can sell upon the duplicate receipt of the receiver, and it is only objectionable 
when the attempted sale is made so speedily after the entry as with other facts to 
show that the pre-emptor\s intention was really, notwithstanding his oath,, to sell it. 
If he really did buy it on speculation and if he really had made a bargain before own- 
ing the land to sell it, then, of course, he would be perjuring himself. 

The Supreme Court has decided that they can sell the land on the duplicate receipt 
of the receiver. The only times the department has set aside an entry for that reason 
has been when, taken with other circumstances, it shows that the entry was a fraudu- 
lent one ; not because of the entry alone, but because of the proof of fraud of which 
that entry constitutes a portion. 

I think there ought to be a law that the register's certificate shall hold good. I do 
not know any policy that would be subserved by preventing the miner from selling his 
lands ; I do not know any practical result that would be subserved by preventing it ; 
and yet there is another matter in relation to that, which is that is it desirable to fur- 
nish facilities for taking up mines. They hold them and let them lie without doing 
anything upon them. The requirement that keeps men at work upon these mines 
until they are patented has a tendency to promote development. The government 
virtually parts with title when they get the register's certificates. 

Q. Cannot all the forms of the Land Office be simplified ? — A. I am not prepared to 
say that all the forms could be simplified ; I find that certain things have to be done 
oefore a certain end is brought about. There has got to be a tribunal to decide when 
these acts are done, and you must decide that on testimony, and when you come to 
take the testimony, then the flood-gates are opened and there is no limit to the amount 
that may be recorded or taken. I do not see that, so far as the method of taking tes- 
timony is concerned, how it can be simplified ; but it never seemed to me that there 
was a great deal of red tape about the paper form. This blank form for taking the 



142 PUBLIC LANDS. 

testimony, instead of being an onerous requirement, is simply a reduction to a system 
of the requirements and a great relief to the one who is taking the testimony. 

Take pre-emption and homestead cases. The settler files his affidavit, and there- 
upon the register's certificate issues. Then comes the making of proof ; then non- 
mineral affidavit ; then, again, comes his two witnesses and his own application to pay 
for the register's certificate and the receiver's receipt, and all these things are neces- 
sary to keep a record of what is done. 

Q. Would it not be well to put it all on one sheet of paper ? — A. The only thing 
about that would be perhaps some would go to one place and some to another place ; 
possibly, though, they might all be put upon one piece of paper. I do not think the 
charges are particularly onerous upon settlers ; I think the most onerous part is the 
distance they have to go to have their witnesses examined. If there were no tricksters 
to take dishonest advantage, I should say let them all go before a notary public or clerk 
of a court and make their affidavits and sjend them ; but I am a little afraid that there 
would result a very loose system of doing things. 

In land cases I do not see why you should not allow an attorney in fact to attend 
to all the business. Except where affidavits are required, which can only be prop- 
erly made by the applicant himself, I do not see any advantage of personal sig- 
nature. 

Q. What do you think of taking the testimony before county judges and outside 
officers ? — A. I have rather an objection, owing to my early political training, to the 
•use of State judicial officers by the United States. I would prefer that they should 
be government judicial officers before whom the testimony should be taken. I have 
never looked with any favor upon a State judicial officer having any connection with 
United States proceedings. It seems to me it is a little degradation to the State 
judiciary. 

Q. What is the effect upon the character of evidence? Does it improve or injure 
the character of the evidence, both as to form and credibility ? — A. I should not be 
able to say. There does not occur to me any reason why there should be any change 
in the matter. 

Q. Have you had any occasion to examine the testimony taken before these outside 
officers ? — A. I have not had any experience. 

Q. What, in your judgment, is the advantage of continuing the present system of 
mining laws, customs, and regulations? — A. I do not see any advantage at all. It 
should be purely a matter of United States law. 

Q. State the disadvantage of the present system and the system you would suggest 
as a substitute for it. — A. In the first place, there is always great difficulty about the 
local laws as to what they are. It seems to me that the United States ought to have a 
system of its own. I think this idea of local laws is a mere continuance of institu- 
tions that sprang up from necessity. When miners settled upon the land for the pur- 
pose of extracting the mineral from it, and the United States did not offer any protec- 
tion for the rights acquired by those miners, it was found that it would not do for 
every man to be a law unto himself. The State had no authority to make laws about 
United States lands in possession, &c, and so these laws grew up simply as aj crystal- 
lization of the customs and public sentiment of the people in each locality. That was 
all there was of it. Each land district made a sort of mutual-defense club. The 
people in that district said, "We will stand by each other;" but if there were not 
some rules to go by there would be nothing but murder, and the taking and defending 
of these mineral claims would be a matter of brute force ; and so each little commu- 
nity agreed to stand by its members. They said, " We will have these rules and de- 
fend each other under them. We will give each man a right to locate so and so, and 
so long as he does that we will uphold him. The State is powerless and the United 
States does not regulate it, and we will regulate it ourselves." Now that necessity no 
longer exists, and it ought to be discontinued. 

Q. How many parties does it take to organize a mineral district ? — A. I do not know 
that there is any rule about that; some are ridiculously small. I do not happen to 
think of anything that would prevent two men from coming together and organizing 
a district and fixing the boundaries. They need not be miners, if they only profess to 
be. There is nothing to show that they are citizens of the United States or miners. 
I do not know what the size of mining districts are ; I am not familiar enough with 
the subject to say. There must be no limit to the size, for a dozen men frequently get 
together and take in a region, sometimes twenty miles by ten. There is nothing to 
prevent the districts from overlapping ; in such cases it would be held that the laws 
within the limits of the first district would take precedence. There is no authority to 
prevent others from making a mineral district within an old district. In such a case 
different regulations may prevail in the same district. There might be two organiza- 
tions making on the same day districts that overlap each other; and you cannot say 
by any rule which should take precedence. 

The usual method adopted by a miner is to stick up a notice on the claim and then 
record it, in the form prescribed by the local mining law. They never have required the 



PUBLIC LANDS. 143 

same strictness that the United States ltiws do in establishing the boundaries, and the 
resnltis that miners do not give the information as required by the Land Office, and there 
is not one location out of ten that^is made in accordance with the United States law. 

There are several decisions made by the Supreme Court where both locations were 
made in accordance with the mining law and pronounced by the court good for nothing, 
because they did not establish their boundaries properly. These notices are written 
either by miners themselves or by some briefless lawyer, in their own forms of descrip- 
tion just as they themselves fancy. You will find many of these claims recorded where 
they say "I have located this day fifteen hundred feet of this ledge running one hun- 
dred, and fifty feet each way, north and south from this stake ;" and there is nothing 
to show where that stake is. A large proportion of the locations made up to this time 
are made in that miserable inefficient way, breeding litigation and failing to carry out 
the object for which they were intended*. The location notice is recorded with the 
district recorder. There is no security for the preservation of the records and they are 
very frequently destroyed, and generally are very difficult to get at. There is no other 
security than the individual honesty of the recorder, and the whole system works op- 
probriously. It was the first attempt to bring order out of chaos. If the records are 
changed there is no means of remedying or correcting it. They might be proved by 
parol evidence, but that opens the doors to all sorts of perjury. They have always 
allowed in any county of the State where the records were destroyed by fire parol 
evidence. If the records are carried off, I suppose the same rule would apply. 

Q. Is not the certified copy of the record made sole evidence of mineral patent under 
the United States law ? — A. It is ; the government has no other method of proving 
that certificate except the existence of the records. I would abolish that system en- 
tirely, and have the location recorded as is now required. I think it is an excellent 
provision that the boundaries should be fixed and permanent monuments established, 
so that the boundaries could be easily traced. I would provide for some record of 
location, within reasonable time, to be fixed by law, and in some permanent office, 
whether the recorder's of the county or the land office I am not prepared to say ; my 
impression is, in the office of the recorder of the State. If a fraudulent copy is pre- 
sented to the United States land office, the land office is obliged to accept it, unless 
they know of the fraud. They have no means, nor can they have any means, to prove it a 
fraud. In ex-parte cases there is no check. It would be well to require that the notice of 
location should be filed with the United States larid office. It at first occurred to me 
that that might be onerous, on account of the distance, but it can be sent by mail. 
I think that would be the best way. I think the United States should keep it in charge 
of its own officers. There should be a limit in the land office primarily. Within three 
months of the location I would require duplicates to be sent to the General Land Office. 
There would then be a check in the General Land Office. 

Q. Would it not be well to require that locations should commence with an official 
survey? — A. Well, there is frequently a good deal of excitement in the locality where 
locations are made and men are rushing to get the first locations. I don't think it 
would be well to require that just at the commencement ; but it would be a good 
requirement that it should be done within sixty or ninety days after the location ; but 
a man cannot get a survey made that way in the first rush." It would be important, 
but it is a work of time to get a survey of a district, and a man might not be able to 
get his survey. It would cost more to make an application for a survey than it would 
for the filing of the notice. 

Q. Would not your objection be met by having the survey, when it was made, date 
back to the date of application ?— A. Well, that is my ideaexactly. The only objec- 
tion would be as to the necessary time for making the survey. A man must be enabled 
to obey the law, to initiate his claim, by one single act of locating the post and the 
notice. He must be able to do, promptly, what is necessary to initiate his claim. 
Then there should be an application for the survey, and the survey should be made as 
speedily as possible after that, in order to get certain possession of the claim. 

Q. The whole thing will be regulated by causing him to mark the boundaries of 
the land, post his notice in a conspicuous place upon the claim, file his notice, and 
make application for survey. Then, when the survey is made, have it date back to 
the date of application ? — A. I think his merely posting the claim should enable him 
to date back to the act. Then he might follow that up with the marking of his boun- 
daries. 

Q. Should not the surveyor-general be prohibited from making any survey upon any 
claim that has already been surveyed ? — A. I think that he should not be allowed to 
make any survey of so much of a claim as had been previously reported on in a prior 
valid location ; but I think he should be allowed to make a survey of the balance of 
the claim, provided the applicant preferred that. He should not be allowed to make a 
survey of the overlapping part. If any valid controversy existed, that controversy 
should be adjusted before the recording of the claim should be allowed. It seems to 
me that the rule should be, that no claim should be surveyed that overlaps any valid 
application which, in its initiation, antedates the application for the survey sought. 



144 PUBLIC LANDS. 

Q. Having initiated a claim in this form, would you allow it to rest upon a posses- 
sory title, or would you make him prove up on his claim ? — A. They should be required, 
within a certain time, to make their proof and pay up. I do not see any benefit to be 
derived from delay. The purchase money of a mineral claim is a mere bagatelle. It 
is allowing a possessory claim when there is no necessity for it ; the government should 
require payment for its land. A very large proportion of the litigation of the present 
day is caused by parties not proving up on their claims. For instance, there ha3 been 
a second location on a mine, which is found to be valuable ; then a claim of three, four, 
or five years' standing will be revived, and it will be astonishing with what facility they 
can prove that work has been done upon that old claim. The testimony will be parole. 
This possessory title seems to operate as a medium for fighting. I would say that 
one year would be ample time within which a man should x>rove his title. By that 
time he should know whether a claim is worth patenting or not. I would require a 
proof of the discovery of mineral before issuing a patent, and would not allow them 
to locate land upon which there is no known ledge. I think there should be reason 
to believe that there is mineral in the land before they are allowed to take out a pat- 
ent for it. Under the present law a mere affirmation under oath of the applicant that 
there is mineral affords him an opportunity to obtain title in an uncontested case. 

Q. Can you suggest any better form of proof as to the fact of discovery ? — A. I have 
no suggestion to make in that respect. The officers cannot go to examine these things ; 
all have to be proven by evidence, and when you require the sworn evidence of two 
witnesses it seems to me you have done all you can. I do not think of any better way 
now. In any proceeding in court, where a fact is to be established by the sworn evi- 
dence of the testimony of two witnesses, that would be deemed abundant to establish 
it, and I do not see why we should not deem that amount of testimony good in mineral 
cases. Of course there is iiabili fcy to perjury, but I do not see why there is much liability 
to perjury on that score for this reason, that until there is valuable mineral known to 
be on that land there is no apparent good object in committing perjury. A man will 
not be likely to commit perjury without some motive for it. 

Q. In the case of the passage of such a law would it not be well to provide some 
statute of limitation as to possessory claims, in possession as such % — A. I think they 
should be entered within a certain time. That is generally the practice in statutory 
limitation, and I do not see why the same rule should not apply here. 

Q. After application, notice, and survey, would you require any proof of develop- 
ment and cause expenditures to be made ? If so, to what extent ?— A. As I understand 
it, the object of the mineral law is to put the mineral lands into the hands of parties 
who will develop and work the mines — not to sell the lands, for the parties may hold 
them for twenty years — and I think there should be, before entry, a fair showing. 
That can only be done by development to a certain extent of the ledge or lode. I do 
not think it is any object for the government to sell its mineral lands except upon the 
presumption that they will be worked, and there should be a fair presumption that 
they are worth the working before patent issues. 

Q. At the expiration of the time for making proof and payment, should not there be 
a cancellation of the claim of any party or parties failing to prove up and pay ? — A. I 
think it should become void and canceled from the fact that proof has not been made. 
I should not wait until another party makes application for the mine. I do not see 
any reason why there should be any delay in the matter. 

Q. Are you familiar with the lines of litigation in the courts ? — A. I have never had 
much practice in that respect. 

Q. Does not that litigation come from parties on barren ground trying to strike the 
ledge of other parties ? — A. I think that is very frequently the case; the great cause 
of litigation is the method of their locations. Parallel to the locator, who is follow- 
ing along the dips, spurs, and angles of his claim, there will be another claimant, who 
is supposed to be on a separate ledge ; but ultimately they find they are on the same 
ledge, which has two croppings, which fact could not be established until a great deal 
of development has taken place. And this danger would be very much lessened, if not 
entirely obviated, by the square locatiou. I would confine these locations to their own 
side ]ines under the ordinary common-law rule. I have not had much discussion of 
the matter, and have no reason to offer, but so far as I have thought over it myself it 
seems to me that that is a proper method of location. I think it is a very great object 
where a man has made a location of the same extent laterally to another claim, having 
every reason to believe it is a separate ledge and the other believing his ledge to be 
separate, and this not being the case but the two coming together. As it is now one 
takes the whole locatiou away from the other. 

Q. To what extent would you cripple deep mining by establishing a square loca- 
tion?— A. Well, it is pretty evident by such a system that the development of the 
first locator, who found his 'ledge run off under his neighbor's laud,- will insure a good 
deal of benefit to that neighbor. 

Q. Would people invest large sums of money in deep mining if there was a limit to 
these developments fixed by law?— A. They certainly would not invest largely to fol- 






PUBLIC LANDS. 145 

low a ledge which they found rapidly getting into another man's ground, unless they 
could buy it. 

Q. Would they arrange to sink a shaft four or six thousand feet deep ? — A. They would 
not without buying beforehand all the land into which they deemed it possible the 
ledge might run. On the Comstock they seem to be following the ledge without any 
great agreement of opinion whether it is one ledge they are following or not. 

Q. Would it not be possible for the next man to claim the next piece of ground, thus 
cutting off deep mining ? — A. A makes a location. He follows the ledge down ; it has 
a dip, perhaps, of forty-five degrees. If he has a claim of 300 feet in width on each 
side of his ledge, he will run out of his ground at 300 feet below the surface. The 
ground that it runs under cannot very well have been located by another upon that 
ledge ; if there was no ledge cropping and no cropping of that ledge upon the adjacent 
land that would enable some other party, perhaps, to locate that land it would not 
be likely that another party would have possession of the land on which his ledge 
would run. 

Q. Could not that objection be covered by increasing the size of the claim? — A. You 
might have so enormous a ledge in width — for instance the Comstock — that it would 
seem, perhaps, not a good policy to allow so very large a location. I have never thought 
of the distance, but they must be, on the Comstock lode, without running off, a very 
long way to the east. Their shafts are all suuk away down the hill. The area, too, 
allowed under the present law is 300 feet on either side and 1,500 feet in length, which 
is 20.66 acres. If you allowed 40 acres to one man it would cover the case. If you 
take a square location of 40 acres I do not think it would be too much. A man could 
then sink nearly 2,000 feet before going out of his claim, and the next man would have 
to sink 2,000 feet before getting on the ledge, and that would debar him from sinking 
on the next claim. Unless there is a cropping, the man who first works the mine would 
have the advantage, because he discovers the mine on the next claim when he strikes 
the true edge of his claim 2,000 feet below the surface. The question of priority would 
be with the man who should discover the mine 2,000 feet below, and he would' go and 
locate it. It is my impression that the square location is the best thing ; on thinking 
it over I am not so sure as I was at first, but it still seems to me that, all things con- 
sidered, it is the best thing. If you allow a man's foot wall to be the initial point, 
that will be a good thing. 

Q. If the square system of location is introduced, should not a man be permitted to 
make his discovery shaft at any point within the claim ? — A. I do not see why not. 

Q. In the event of the square location being adopted, do you see any necessity for 
continuing the tunnel claims? — A. I do not see any reason for discontinuing them. 
If a man has a reason to believe that there is mineral in the place, I think he should 
have the right to it in any way he pleases. In tunnel location a man has the right to 
everything he discovers on the line of the tunnel, providing the body of mineral is 
not larger than his tunnel. 

Q. Would it not conflict with a square location ? — A. No ; he would simply have a 
right, when he struck mineral, to locate the claim where he discovered the ledge. He 
could not take the claim if it had been previously discovered. 

Q. Would not the rule which allows a man making a tunnel location the right to 
anything below the surface of a claim located by another party destroy the square 
location? — A. No; I think not, because if a square location is made, then the locator 
takes all there is there and the tunnel man gets nothing, the land being located. 

Q. Before his tunnel reaches the vein there would be two men on the same ground?— 
A. If the first man takes all of it, there is no harm in the second one being there. 

Q. Is there any necessity for continuing the law ? — A. Yes ; the tunnel is a form of 
discovery. There is no other necessity in the law, except that it applies to one form 
of discovery. 

Q. Is there any necessity for considering the mill-site privilege? — A. I have not 
thought of that, but it seems to be a convenience and a very necessary thing to be 
able to take up a mill-site in regions of this kind that have not been generally sur- 
veyed and subdivided. In the event of the establishment of a square-location sys- 
tem they would have sufficient area, but then it does not follow that it would be a 
good miil-site. They have to have water and timber, which is not always to be found 
upon the mining location. 

Q. Do you understand that under the present law the mill -sites are restricted to non- 
mineral ground? — A. Yes; and I can say that it would be very awkward. Mining 
locations are mostly in a region where there is more or less mineral, and to obtain 
mill-sites the miners have really to commit perjury in many instances. There could 
be no harm done by allowing a mere location of a mill-site. I have thought whether 
there should not be a requirement as to mill-sites that work should be done before 
title to the site is parted with. I think that it would be a wise provision to compel 
a party to show that the mill has been erected before they got title to that land. 

Q. Is there any provision regulating the distance amili shall be from the mine? — A. 
My recollection is that there is not, and I think it would be pretty difficult to regulate 

10 L C 



146 PUBLIC LANDS. 

the position of mills. The circumstances under which they are located vary widely 
You have to go sometimes very far to get water, and in other cases you can get water 
close by. The circumstances are so various that I do not think it would answer at all 
to regulate the distance at which a mill shall be located from the mine. 

Q. Are not mill-sites taken up simply to hold the timber land and obtain possession 
of the mining land? — A. I have known cases where the mill-sites have been taken up 
and no mills erected. Of all the mills I have known I can't say how many have been 
taken up as mill-sites ; but — to carry out my explanation — the Ophir mill was located 
originally some sixteen miles from the mine. It seemed a sensible location then. They 
could get water there and had grazing land for their stock. There was no good loca- 
tion any nearer, but as they began to develop the mines there they struck water and 
soon began to have enough of it to run a mill. Then, as soon as ever they got water- 
works it became a good place for mills. At the time their mill was first erected it was 
considered to have been erected in the most desirable location attainable. 



Testimony of James O'Brien, San Joaquin, Cal., relative to timber lands, mining debris, land 
damaged, mineral land, quartz mines. 

James O'Brien, of San Joaquin, October 24, Marysville, Cal., made the following 
statement : 

I have lived here since 1853. 

Question. Are you familiar with the timber land ? — Answer. Very little ; I live in the 
foot-hills. 

Q. You are familiar with the debris question and live very near to the country where 
the land is injured ; to what extent are they injured? — A. I should judge there was 
about 12 sections of the land injured on the Yuba River. 

Q. What is the nature of this injury ? — A. It is a light deposit of land slickings or 
loam that settles into the valley and strikes where the grade is low. There is a large 
portion of that which is covered that will raise very good grain now as well as corn 
and potatoes. Where the sand covers the land the injury is permanent. 

Q. Is it not ? — A. Where it is covered with slickings the land after a few years can be 
used again if the water can be kept off of it. 

Q. Have you any suggestions to make concerning relief in this matter ?— A. Nothing 
more than the construction of good levees in the valleys to hold back the debris. In the 
mountains and canons on the Yuba River there is about 8 miles of the river, about 1 mile 
wide, where if dams were put in they would hold a large portion of these larger tailings 
before it comes down onto the plains below. Large portions of this stuff that has set- 
tled around Marysville to about 6 miles is caused by the growing of willows. The 
water rushes down there and it deposits the material after holding it from the mount- 
ains. There is not more than one-half of the 12 sections of land that is covered with 
sand and the other half covered with slickings. There is aline of levees on both sides 
of the Yuba River from Marysville to the foot-hills. The miners built one line of them 
on the south side and the farmers built the other. The levee that the miners built is 
about 7£ miles long, and that is the extreme end and where there is no damage. The 
damage only extends about 7£ miles east of Marysville on the Yuba River. The levee 
is built about one section back from the river, and the levee, on the north side is about 
the same width, it being about 2£ miles between the two levees. 

Q. How long have lands that have been damaged been in the possession of indi- 
viduals ? — A. A large tract of land on the south side of the river that is covered has 
been in the possession of the parties that own them now about sixteen years. The 
owners of this land in 1862, in the freshet, left them : and the parties that have them 
now, they got them by tax titles. There is one tract of 2,200 acres, and I should judge 
that 2,000 acres of that lie between the levee and the river, and possibly 200 acres lie 
south of the levee. All of that property was got by tax titles. 

Q. When was the damage done ? — A. The greatest damage was done in 1862 ; we had 
a very severe freshet that year. 

Q. Generally speaking, at what season of the year is the damage done? — A. In the 
month of January — or probably from January to February is probably the time of the 
greatest freshets. 

Q. What do you think of the policy of continuing the mineral reservation f— A. I 
think it would be wise to continue it as it is. 

Q. Don't you think it a great barrier to the progress of the agricultural indus- 
tries ? — A. I do not know that it is a great barrier or hardship to prove the mineral 
off. Now I think it is advantageous to the mining industry, and I think it leaves a 
better field open for prospecting and development of the miues. 

Q. What do you think of the policy of shortening the time that a man can obtain 



PUBLIC LANDS. 147 

title to mineral land ? — A. I think it would be very advantageous. I think the time 
allowed now is too long. m 

Q. What do you think of the effect of organizing mineral districts and putting the 
districts under the local laws here, then leaving them to be worked on under the United 
States law ? Are local laws of any advantage to the country ? — A. They have been, 
but now I don't know but that they create more litigation than there would be if they 
were done away with and the United States law prevail entirely. , 

Q. Have you had any experience in quartz mines ? — A. No, sir. 



Testimony of George Ohleycr, Yuba City, Cal. 

Marysville, October 28, 1879. 

George Ohleyer, residing in Yuba City, made the following statement : 

I have lived on Yuba River from 1858 to 1865, and since then I have lived in Sutter 
County. 

Question. Just give your opinion of the depth and lateral extent of the debris which has 
been carried down since the hydraulic mining commenced. — Answer. I was living then, 
before there was any trouble from hydraulic mining and before there was any hydraulic 
mining, a mau, or anything on the Yuba River, about four miles from this city. My 
occupation was farming and threshing. In early days people did not want the high 
plains here, they being very dry and worthless as farming lands ; so consequently every- 
body applied for a piece of bottom land ; the result that this Yuba Valley was thickly 
settled from the left of the Yuba to the foot-hills. I am not positive as to distance, 
but I think it was eleven or twelve miles. This valley bottom land, I should judge, 
was an average of two-and-a-half miles wide. It was thickly settled and was as fine 
land as I ever saw. In many places it was cultivated right up to the banks of the 
river and was cultivated along its entire length. 

Q. How many people were in the neighborhood and valley at that time?— A. I 
think there was, on an average, a family with hired help, &c, or perhaps twenty-five or 
thirty persons to the square mile. 

Q. Are there any of those farms leveed? — A. There is not a foot of one, and the 
people have abandoned their farms, many of them have died, and others have moved 
away because they have nothing left. During the years 1858-'61 1 threshed on both 
sides of the river, from the mouth of the Yuba River to the foot-hills. I threshed 
wheat, barley, and oats all along, and could raise corn and vegetables too. All these 
farms have pretty good buildings on them. 

Q. What was the character of the buildings ? — A. They were mostly frame build- 
ings — some of them had fine two-story houses and three-story ones, different and sim- 
ilar houses, and they had barns, which were well fenced, and had very expensive or- 
chards and vineyards. 

Q. What would that land be worth per acre, with improvements on it, if it was 
recovered to-day? — A. I think a reasonable view of it, in consideration of the or- 
chards and vineyards, would be $100 per acre. Some of the grain might not be worth, 
were one exchanging hands, for $100 per acre. A portion of this land, which was 
covered with buildings then, is now covered with sand. I made a statement before 
on this subject to the committee, and I will read the following statement which 
I made and which was printed in one of our newspapers, showing the immense losses 
that had been sustained by farmers in the river valleys by the inundations of sand, 
water, and sediment at that time. They are as follows : 

Twenty-four sections of land destroyed on the Yuba River— 15,360 acres — 

valued at $200 per acre .' t $3,072,000 

Personal property and improvements '. 3, 000, 000 

Loss and depreciation of property in Marysville 2, 000, 000 

Destruction on Feather River 500, 000 

Eighteen sections on Bear River — 11,520 acres — valued at $100 per acre.. 1, 152, 000 

Destruction in Yuba County - 9,724,000 

Assessed value of all property in Yuba County for 1875 5, 025, 720 

value of all mining property in Yuba County in 1875 298, 600 



148 PUBLIC LANDS. 

Destruction of property in Sutter County : 
Eighteen sections of land on Bear River — 11,520 acjes, valued at $100 per 

acre r 1,152,000 

Personal and improvements 1, 000, 000 

Destruction in southern portions of the county, Coon Creek, and Anourn 

Ravine 500,000 

On Feather River on both sides 500, 000 

Total in Sutter County 3, 152,000 

This rather underestimates. Since then this backwater that has been spoken of has 
injured on Feather River all my land above the confluence with the Yuba River. Be- 
low there are many tine orchards that are totally ruined, and below as far as the mouth 
of Feather River two millions are almost ruined. It is unsafe to do anything with 
them. These we attempted to farm, and, having continuous loss of money, most of 
them failed financially in trying to do anything with the two millions on Feather 
River. Total in Sutter County, $3,152,000. I also estimated that the amount already 
spent by the building of levees to protect what was then not wholly destroyed, 
$1,000,000, and I claim that at that time the levee works were still protecting prop- 
erty that was worth $20,000,000. They had attempted to keep out Feather River at 
very great expense, but in many places the levee is all banks, and if it keeps on filling 
as it has for the last few years we must levee, or we would have to keep building 
artificial banks, or it will overrun us. 

Q. The Feather River, then, has entirely filled up its old channel ? — A. Not entirely; 
but in many places where banks are low it is entirely full. 

Q. Does the water at low water flow against your levees ? — A. Yes, sir ; in some 
places. I am connected with a farmers' co-operative union, and in 1874 there was a 
big warehouse building and the floor was but one foot higher than the levee. The 
levee was built, I think, in 1868, three feet above high water, and we put the floor of 
this warehouse one foot above the levee, and we now have found it necessary to add 
three feet on the top of that levee. This is right in the town, and the water reached 
over that old height in 1878 where it hadn't been raised. This was last winter, and 
it was not a very great winter for freshets either. The bridge that was originally on 
a level with that levee, and perhaps higher, the county supervisors are now raising 
six feet. 

Q. Do you think that the debris goes back on Feather River or crosses it ? — A. Well, 
it crossed to some extent, I think, below this levee. I have not seen much evidence 
of it, though. I have seen some, say 18 miles down the river, as much as three or four 
miles north of Feather River. It does not come out of the Sacramento, because that 
is comparatively pure. It would come in here all the year round if it was not for the 
levees. If the water was clear we would not mind a particle, or we would not com- 
plain of the debris. 

Q. Does your statement include that district of country between the Bear and Yuba 
Rivers? — A. My statement just made only included the Bear River Valley. It does 
not include the stretch of country between the Bear and Yuba Rivers proper. 

Q. To what extent are the lands injured between the Bear and Yuba Rivers?— A. 
Where they are protected by the levees there is no material injury ; but they would 
be certainly overrun by the debris but for the levees. 

Q. How far back from the river is the levee ? — A. On the south side I have not been 
for some years, but on the north side I saw them recently ; it is a considerable dis- 
tance. 

Q. What land has been injured on Feather River? — A. Taking the bottomland 
along Feather River, and between the Bear and Yuba Rivers, it is injured some, but 
I have not been on this land for some time. There has not as much injury been done 
as to the land on the Bear and Yuba Rivers. 

Q. Is that country leveed also ? — A. On one side, where the water backs up. 



Testimony of D. A. Ostrom and others, Wlieatland, Cal. 

D. A. Ostrom, of Wheatland, Cal., testified at Marysville, October 27, 1877, as fol- 
lows: 

I have lived in this State since 1850. 

Question. How long on Bear River ? — Answer. I first came on Bear River in Feb- 
ruary, 1852. 

Q. You are familiar with the farming operations on Bear River? — A. I am and have 
been. I would state that when I first knew Bear River it was a pure stream of water, 
clear at all times, in flood times as well as dry, and it continued so until about the 



PUBLIC LANDS. 149 

years 1861-62. There was no very perceptible change until the winter of 1861-62, when 
there was quite a flow of tailings and debris, as we call it, which filled a good many 
smaller sloughs that usually carried most of the flood water in flood times, and par- 
tially filled the channel of the rivers but not entirely. The channels continued filling 
up to date. My knowledge is extensive. I was familiar with the land five years prior 
to that, and I think that the settlings of these tailings and debris has been going on 
in an increasing ratio year after year ever since the years 1861-62 ; so that the water 
coming down Bear River contains perhaps four or five and possibly ten times the 
amount of tailings now that it did in the year 1865. It comes in an increasing ratio 
each succeeding year. When I first knew that country the bottom lands were all the 
lands that were cultivated, and not all of them was under cultivation. That was the 
only land that was considered valuable in those early days. Compared to the high 
lands, which is now farmed, and which will raise what we now consider a fair crop, 
it was valuable, while these high lands were considered worthless in our estimation. 

The Bear River valley was from one and a half to two miles wide. That would be 
a fair approximation up from the mountains to its entrance into the Feather River, 
which I believe would be at a rough approximation something near sixteen miles from 
where the river debouches from the foot-hills to its entrance into Feather River. That 
was a very thickly inhabited section, and it was very rich land ; it was the garden 
spot of California, and was thickly dotted with fine homes. There were some four or 
five school districts within six miles up and down the Bear River bottoms. To-day I 
think there is but one little school-house in that section of country and it looks terri- 
bly dilapidated. The population have almost all gone. The value of the property 
along the rivers in Yuba and Sutter Counties, with the ordinary increase in value of 
property, would by this time be almost incalculable. That land in the condition in 
which it was would reach, perhaps, the price of a hundred dollars per acre on an average. 
There is no doubt but at that time it could be readily sold for that sum. Now, if it was 
in the condition it was before this overflow of debris, it would sustain a population as 
great as that of the most productive spot on the earth that I have ever seen. It was 
even then thickly settled ; almost in every instance a farmer on a quarter section was 
doing well ; to-day I do not believe there is one-twentieth of the population that 
was there at the commencement of this overflow. I have been almost as well 
acquainted with the Yuba River and the city of Marysville since 1862 as I have been 
with the Bear River Valley, and I have been something of an interested observer of 
this thing from the first. I have watched it closely, and I think the Yuba River bot- 
toms are larger and more extensive than those of the Bear River, with equally good 
soil, lacking only in one particular. The Yuba bottoms were covered with underbrush, 
and it had to be cleared out at a cost of from $20 to $30 per acre. With that exception 
I should class the Yuba River bottoms as equal in value to those of the Bear River, 
and they were held and used in the same manner as the land on the Bear River, which 
I consider the best body of land I ever saw in my life. A description of one will 
answer equally well for the other. The Yuba River from the foot-hills to its junction 
with Feather River is not so long as the distance along the Bear River from the foot- 
hills to the junction of the Bear River with the Feather River, but I should say it was 
somewhere from ten to twelve miles. The land along the Yuba River is perhaps wider 
than the land along the Bear River, and would average about two and a half miles, 
making, perhaps, as large and possibly a larger area than the Bear River bottoms 
would. It was very productive, and some of the largest orchards in the world and 
many smaller ones were there. The Briggs orchard, which was one of the best, is now 
a waste of sand. The population of Yuba River bottoms has decreased in as great a 
ratio as that of the Bear River Valley. In fact it will complete the depopulation of 
these river bottoms if this thing continues. 

I heard a gentleman state in regard to the overflow of 1862 that it was a noted 
water year. It was one of the heaviest floods we have ever known in California, over- 
running a great portion of these bottoms, perhaps the greater portion, but to my 
knowledge it did no damage. The water was clear and pure ; the only damage it did 
(which in those early days did not amount to a great deal) was the removal of a 
little fencing, or something of that kind. If we had a flood to-day as great as that of 
1862 the water would, in my opinion, reach up to the first floor where we are sitting, 
in the streets of Marysville. I doubt if the levees which are being constructed would 
be sufficient to keep back the flood, and, as I have expressed myself to citizens in 
Marysville here, I do not think they can build a levee to withstand these floods, 
neither here nor in Sacramento City. In regard to this filling : I have been acquainted 
with hydraulic mining. As an old Californian I have been through the mining dis- 
tricts a great deal, and have seen hydraulic mining perhaps in its incipiency, and until 
they began to pipe these hills I saw no de'bris in the streams ; not until hydraulic min- 
ing proper commenced with the great force of water which they bring to bear, and 
their perfect machinery with which they are literally melting down these mountains. 
They undermine a bank and place in it a charge of powder, and bring down immense 



150 PUBLIC LANDS. 

quantities of earth, and then carry that off with water. They are really precipitat- 
ing mountains down upon us. That is the way to express it. 

I read some statement made by a gentleman in San Francisco, with whom I am 
somewhat well acquainted, having lived near him some years, and as it is a little con- 
tradictory to the statement I have made, I wish to refer to it : 

Mr. Von Schmidt made a statement I remember that vegetables could not be suc- 
cessfully grown at all until the accumulation of a certain amount of this debris upon 
the land, and that they had never been successfully raised without it ; that it was 
impossible to raise them. 

Now, with the utmost deference to Mr. Von Schmidt, who has some reputation as an 
engineer, I wish to say that prior to the overflow of this land by this cUbris there were 
better vegetables and more of them, and that it was ten times as easy to raise them ; and 
they were far superior, infinitely so, before this overflow to what they have ever been 
since. It is true they raise good vegetables now ; and I would call your attention to this 
fact, that they only raise them on the portions of the land that have been protected from 
this overflow. 

Q. Will the levees protect these lands? — A. Many gentlemen are working away, 
building levees, &c. My experience teaches me that it is almost a frui-tless effort. 
A farmer with a tract of this bottom land upon which at favorable times he can raise 
from forty to fifty bushels per acre, valued at a dollar a bushel, undertakes to build 
levees to keep off this water, with its steady increase of tailings from year to year. I 
think it will take every cent of his profits, and perhaps more, to do that ; until finally, as 
I have seen over and over again, there will come a little extra flood and sweep it away, 
and utterly ruin the land. I know farms on Bear Eiver that cost from twenty to forty 
thousand dollars the owners of which are as poor to-day as church mice. This was all 
caused by this cUbris. 

Q. During what season of the year are these flows'? — A. They occur, properly speak- 
ing, from 1st of April to the middle of summer ; they vary from season to season. 

Q. The injury is done at the time of flood, is it not ? — A. The greatest amount of these 
tailings make their appearance here during the winter season; it is thrown out of the 
channels at that time. Apparently — I flattered myself the same way — we have a wash- 
ing out of our channels, and it appears as though it would work out; but the following 
summer we find that the channels are raised perhaps two feet higher than they were the 
previous year, and we find the adjoining sand-beds on each side of the channel have 
been raised in the same ratio ; that, as a matter of fact, the harm is almost altogether done 
in the winter-time. The floods sweep sand and debris out of the channels which have 
been filling op during the summer and. spreads it out on the land, and the next summer 
other accumulations fill up the channel again, and the next winter spreads it out again 
over the land. This is the action of it, as I have observed it, with an increasing ratio 
from year to year. 

You asked the gentleman who was making a statement a little while ago in regard 
to the width and the widening process of these 'sand-beds. You saw it here where 
you crossed the railroad. The widening process has now reached a point where it has 
become very rapid ; more so from this very fact : these river bottoms were originally 
something of a trough, into which you came down from the plain lands, and as you 
came down from the plain lands into the river bottoms perhaps it would average eight 
or ten feet. These high lands were higher than the bottom lands proper. 

We now find it in this condition : These bottom lands or troughs have filled up until 
they are almost as high as the highlands adjacent ; in many places as high. In one 
place the Bear River, for a mile or a mile and a half below the railroad, has wid- 
ened over two miles, and for the last five or six years has flowed over a ridge of the 
high-land that in the great flood of 1861-62 was high, but which it now flows over at 
low-water mark. 

The levee which Mr. Keyes built afforded protection at low water, but I believe it 
broke last winter, and it has widened again indefinitely, My opinion is that it is only 
a question of a short time when this whole upper Sacramento Valley (and I speak from 
experience) will be simply a swamp and willow thicket and a waste. Perhaps this 
will extend over most of the Sacramento Valley. It will be some little time before 
that will occur, but the water will eventually fill up these channels. 

I wish to refer to another proposition while I think of it. It has been said that there 
is a great deal of wash from the plowing of land, and a great, deal of stress has been 
placed upon that; and some of our most skilled engineers, men of perhaps national 
reputation, have advanced the idea that the plowed laud has done a large part (if 
not the greatest part) of this mischief. 

Now to disabuse this Commission of any such opinion and to show the absurdity of 
that idea it is only necessary to go to any of our streams that have no hydraulic mining 
on them. That would be a fair test. I live out hero on a stream we call Dry Creek. 
There is no hydraulic mining on that creek. I have known it for the last twenty-six 
years or more, and I have been farming on it ; and I give you my word it has not 
filled over three inches in all that time, nor is there ever any muddy water in it. On 



PUBLIC LANDS. 151 

the borders of that creek for the last twenty years there has been the most successfu 
farming, and as successful grain farming, too, as there has been in Upper California. 

The absurdity of the idea could be better proved if you could possibly spare the 
time to take a little trip over the agricultural districts during one of our most violent 
rain-storms. You would then see a great deal of water on the flood land, and you 
would see it every time absolutely clear. 

I refer to every farmer in this room if this is not the fact. Why is it so ; because 
it has flowed over flat land, and there is nothing to create a commotion. That is the 
effect, and the very small amount of cultivation that is going on in the foot-hills it is 
not worth while to consider, because it does not amount to anything in the way of fill- 
ing up these streams. 

Again, there is another point : Some gentleman in making a statement before the 
Commission referred to the roads that had been dug in the mountains. I have trav- 
eled over these roads year after year, and do so still, and it is my opinion that if the 
roads that send down mud into the channels of the rivers of Colfax County were 
taken together the debris would hardly be perceptible. I do not believe that it is one 
hundredth or one millionth part of what constitutes the debris does come from the 
roads — not even if you include these washings coming from agricultural lands in the 
foot-hills. 

The flat plains lands were settled first, because they were the productive lands of the 
country as then considered. In the early days of California there was a great deal of 
what we call low lands that \£ould produce a fine crop of wild hay that was worth 
more than the very best wheat land, and these bottom lands along the rivers all pro- 
duced this wild hay or grass. Now, in addition to that, I would say that these lands 
were really the most productive grain lands that there was at that time in the country. 
I have harvested 100 bushels of grain, and again over 70 bushels, and again over 60 
bushels of grain from this quality of bottom land. 

I am not an engineer, nor am I skilled in the technical phrases in regard to the differ- 
ent qualities of soil, but these bottom lands were different in every respect from the 
other lands. Under our highlands and in fact almost the whole of Upper California 
we find an underlying bed rock, or hard pan, from 2 to 6 feet deep. In almost all of 
Upper California it is so. The tules have this same sub-stratum, and between the Fea- 
ther and Sacramento Rivers you will find the same hard pan underlying the land. 

These bottom lands have no such strata. The winter floods bring the water to this 
quicksand subsoil which, in the bottom lands, takes the place of the hard pan, and up 
through this quicksand comes the moisture as it is carried along, so that in the morn- 
ing you find a dew on this land ; but when you go back fifty yards on the highlands 
you find nothing of the kind, but the dirt is as hard as a brickbat. 

As to the different qualities of the soil, I. do not know anything about that. 

A gentleman made a statement in regard to the rivers filling up. I had the honor 
of conducting an investigation under the authority of the legislature at the last ses- 
sion, and I have a copy of the testimony here of skilled engineers and of men who 
have been familiar with the river and its channels and its changes since the year 1849. 

The testimony of one of them relates to that one point ; and in the matter of navi- 
gation I wish to call your attention to the statement of Captain Albert Foster, who 
was in the employ of the Steamboat Navigation Company at Sacramento City. He 
has been in their employ for ten or twelve years, and prior to that he was on the upper 
rivers, both the Sacramento and Feather. His statement is as follows : 

" Captain Albert Foster sworn and examined. 

"My occupation is that of a steamboat captain ; I have been acquainted with these 
rivers since 1851 ; I have run on all the streams, but more particularly on the Upper 
Sacramento and on the river between here and San Francisco. 

" Question. Describe the changes you have noticed since that time. — Answer. Well, 
starting from the Upper Sacramento, I can notice no filling in there since the time I 
commenced running ; I had soundings, but I haven't them ; I have soundings taken 
on the river all the way from the mouth of Mill Creek clear down to September, 1851. 
I have found shoal places below Wright's place at that time which I have never seen 
since. The banks up there are of such a nature that in high water they kept cutting 
and the river kept changing all the time. Still, the current is such that the bed would 
not fill. I would not change much from Captain Pierce's statement until you get down 
to Knight's Landing ; from Knight's Landing down to Fremont the Feather River 
backs up the water so that now we run over places where in 1851 were dry bars. There 
are bars there now, but there is water enough, from the backing up of the Feather, to 
enable us to run right over them. The filling in of the river from Fremont, down all 
the way to the Feather River, is much more, I think, than many of them think. I 
have some facts in reference to this river immediately in front of this town. In my 
judgment, in 1849 the river would average about 24 feet from shore to shore, in front 
of the city here at Sacramento. I sounded the river to-day so as to give facts. The 
lowest water of 1869 was 2 feet 9 inches above that of 1849 ; in speaking of 1849, 1 



152 PUBLIC LANDS. 

refer to the gauge that has been kept here — the '49 gauge ; that was here before there 
was any perceptible change in the rivers. The lowest water in 1869 was 2 feet 9 inches 
above that of 1849 ; the lowest in 1874 was 4 feet 9 inches above that of 1649 ; the 
lowest water in 1875, October, was 4 feet 5 inches above the '49 gauge ; the lowest in 
1876, October, was 7 feet 1 inch above the '49 gauge ; the lowest water in 1877, in Sep- 
tember and October, this last fall, was 5 feet 3 inches above that of 1849. 

" Q. Now, as to the seasons ; how did the seasons prior to this time compare — were 
they drier or wetter ? — A. I think never but once since I have been here was there less 
water in the river than there was this past season — 1877. At that time the difference 
was 5 feet 3 inches. There was an average depth to the river along the city front 
here in 1849 of 24 feet at low water. This depth extended nearly clear across the 
river. The average depth in front of Sacramento in 1878 in low water would not 
exceed 8 feet ; and as the water was 5 feet 3 inches above that of 1849, it would show 
a filling of debris equal to 21 feet 3 inches — solid filling in. I have made soundings 
to-day, starting on the Sacramento side and going on a line below the piers across to 
the Yolo side, about two hundred feet below the bridge ; we sounded between the piers. 
We fouud by these soundings 45 feet of water on the Sacramento side, next 42, next 
36, next 36, and last 30. Again opposite I street we started with 45 feet ; next sound- 
ing, going across, 38 feet;, next 33 feer, and the last 33. Opposite K street the first 
sounding was 36 feet, next 36 feet, next 30 feet, and last 24 feet. These were made, 
all of them, in a straight line across the river. Opposite M street the soundings were 
30 feet, 27 feet, 30 feet, and 21 feet. Opposite P street, 27 feet, 27 feet, 27 feet, and 21 
feet. Opposite the gas-works, on Y street, 30 feet, 27 feet, 21 feet, and 18 feet. This 
gives an average of 30 feet 5 inches on all the soundings. The water on the gauge 
was 22 feet 1 inch — on the gauge at the time, at K street. The soundings were both 
above and below that gauge. The average depths, compared with 1849, would be 8 
feet 4 inches. Deducting 22 feet 1 inch shows that the debris at this time is 15 feet 8 
inches more than it was in 1849. The scouring away during this flood, according to 
these figures, would be 5 feet 7 inches ; that is, from bank to bank. The washing out 
has been 5 feet 7 inches during this last flood. That wifl overrun, take it all along 
the river. It has scoured out more than that, take all along the river. This shows 
that the flood has scoured the channel out on the Sacramento side here about down to 
the original channel of 1849, but it has not done so on the Yolo side. 

"Q. From your knowledge of the river, have other deep places filled in in about the 
same proportion? — A. Yes, sir; about the same. 

" Q. In early days about what proportion of the river-beds was occupied by bars and 
deep places ? — A. There were very few bars — what we call bars — in early days. There 
were shoals — the Hog's Back and several bars down that way. I suppose we would 
carry an average depth of three or four fathoms of water in early days — all except 
these particular shoals I speak of. The average now, I should say, would not be half 
that much. These bars and shoal places are much shallower now than they were then. 

" Mr. Garver. How much has it raised at Hickox Shoals? 

" A. Well, we have, as against 11 feet, less than 6 feet this last season. The debris 
has raised, I think, more in proportion, because the water don't go as lew in its banks. 
But where we would have 6 feet at low tide this year we used to have 11 feet. 

"Mr. Kercheval. Speaking of Hickox Shoals, you say now the relative condition 
is as 6 to 11 ? 

"A. In the channel. 

" Q. So in early times you went almost anywhere ? — A. Yes, sir; we generally made 
about one crossing. Where there is a dry bar this summer we generally had 8 or 9 feet 
in early days. 

"What do you think of the relative carrying capacity of the river, take it from 
Sacramento down to the bay, compared to 1849 and 1850 ? — A. Well, it is in times of 
flood perhaps one-quarter less, may be hot that much difference. The water now from 
the first rise goes off quickly, more so than the same amount of water in 1849, because 
there is more fall. 

"Q. Do you notice any difference in the tides? — A. Yes, sir. The tides in 1849,1 
have seen schooners swung upstream right here in town. Then the tide used to go 
from 20 to 30 inches. The tide at Fremont used to be from 10 to 12 inches. At Knight's 
Landing it was perceptible — some 3 or 4 inches — so it would show on the bars. The 
tides this last season — I do not think our highest tides exceed 8 or 10 inches here at 
Sacramento. Only a very lull tide is seen at all here. Full tides swell the river a 
little. 

"Mr. Garver. How is the water on the Hog's Back bar? 

"A. There is about the same difference in the depth of the water. There has been 
a wing-dam there. But at low water it is not over 6 feet on an average. I have not 
been there to sound it for two or three years. It used to carry 11 feet, in high tide, in 
early days. 

"Q. Is it not more than C feet now at high tide? — A. Yes, sir; but 5 feet at low 
water. 



PUBLIC LANDS. 153 

"Q. What is the average tide there in low water ? — A. I know they used to figure on 
it, and came up there with vessels drawing 11 feet of water ; it must have been more. 
I don't know the average tide there in summer. 

"Q. Did not a schooner sink there in early days and obstruct the channel? — A. No, 
I think not. 

"Mr. Ostrom. What is your opinion about the debris filling the bay? 

*-* A. It is noticed at two points, in places where there is slack-water. In the main 
channel I think there is but little difference in the depth. At Seal Island, I think, 
there is less water there now than in 1849. The channel is about the same. 

" Q. You think the rilling that takes place is around the edges of the bay ? — A. Yes, 
sir ; in slack-water. 

"Q. What is your opinion in regard to this relief canal, so called? — A. Well, it is no 
new opinion. I have always advocated the building of a canal here on the west side 
of the Sacramento, so as to carry the natural overflow of the Sacramento River from 
above Colusa. They could do that, I think. 

" Q. About what width such a canal would require ? — A. With these large floods there 
would not be much danger of their getting it too big. I would not build it less than 
600 or 1,000 feet wide. 

"Mr. Kercheval. Now there has been some talk of cutting a canal up at, I think, 
Gray's Bend, cut into the river, digging it from 300 to 1,000 feet wide, cutting the bank 
down 6 feet, and put weirs in so the water would pass over. Now I want to ask you 
what effect the diversion of that amount of clear water would have in decreasing the 
scouring forces, thereby enabling the Sacramento to keep itself clean of the sediments 
coming from the mines ? — A. I believe every particle of water that you take out of the 
river that you can force to go through decreases the scouring capacity just that much. 

"Q. Will not diverting this clear water have that effect? — A. In high water the 
water is quite muddy that comes down the Sacramento. In low water it is clear. 

" Q. Now, my proposition is to take it out below the mouth of the Feather River, so 
as not to take the clear water. — A. Well, in taking the overflow above Colusa, flowing 
toward the Feather River, also from the Feather River, it fills a very large basin of 
water there. My idea is to reclaim that, to cut a canal through there. In doing so, 
if they carry that water in a canal, they have to strike the Sacramento River above 
Fremont. In doing that it would necessitate the cutting of a bank and making the 
canal from the opposite side. 

"Q. Would it not be better to take the water out below the mouth of the Feather 
River, in order to divert the clear water entirely ? — A. I am satisfied that the water 
below Fremont is muddier than above, so that a canal running out below Fremont 
would carry more sediment than one taken out above ; in high water, however, not to 
any great extent. 

"Mr. Waters. Did you ever figure on the probable cost of a canal that would carry 
such a flood as we have had ? 

" A. No ; I have guessed two or three times. I think it would go up into the mill- 
ions. I think one of the hardest things to attain is in making the banks of the canal 
stand. I think the same trouble would be found in trying to keep the water in the 
Sacramento with levees. I consider it is impracticable to levee against the water of 
the Upper Sacramento River, because I have seen the banks cut away in one rise, in 
one place, 100 yards to the depth of 25 or 30 feet ; and the more you confine these 
waters the more they will drive into the bends. It will go half a mile to a levee and 
cut through it. If even you could build the levees high enough, they would under- 
mine and cave in. You would never know when you had the levee far enough away. 
As you get down this way there is less current, and the levees are less liable to cut. 
I believe it has been shown that the river will carry from 24 to 25 feet, and I think it 
is policy to make the river carry all you can. If you could take the water by this 
canal straight across and empty it into Suisin Bay, where it would not back up the 
water of the Sacramento, that water would get down there and spend its force before 
the rise in the Sacramento would get near to the bay. It would have a shorter cut 
and a great deal more fall than the Sacramento. 

" Q. Did you ever make any calculation on this basis ? I understand the fact to be 
that the upper end of the streams are all of a higher grade than down here ? — A. Yes,, 
sir. 

"Q. Now, how big a canal is it going to take to carry the water up there so as to 
keep it from overflowing ? We find just so many gallons per hour passing here. How 
deep a canal is it going to take ? — A. Well, if your canal is ready to work as soon as 
the water comes over the banks it is ready to travel off in the canal. It will not work 
as it does now. Now it fills up in the tule lands above Knight's Landing. It gets that 
full, so that it is two or three feet higher than in the river. Then it breaks through and 
comes down to the next district, and so on down. I noticed the other day, down at 
the islands, at the foot of the island it must have been two feet higher than the river 
itself. It breaks over and runs down inside of the levees, and thus breaks through one 
place and another. If they had no levees at all the water would not have gone near 



154 FUBLIC LANDS. 

as high at Grand Island, in my judgment. I think there was not as much water as 
there was in 1862. 

" Mr. Rercheval. Now, as a relief, not full but partial, what do you think about 
cutting a canal through the Montezuma Hills, and meeting the tide-water over at Den- 
verton ? 

"A. I think if a canal was made there it would relieve you down about the islands 
in such time as this — in fact, all the overflowed lands down there. We have a foot or 
eighteen inches more water in the Sacramento to-day than we would if it was not for 
the rush of water going off Cache" Creek Slough. It forms a regular dam. It backs 
the water up as far as here. The current is not as strong in the river now as it was 
two weeks ago. This checks the current and prevents us getting rid of the waters — 
commences the stuffing process. Take Old River, and it is slack- water there now. 
There is no current at all this side of the Montezuma Hills. The sediment, with this 
current here now, travels on down to the slack-water and there it will fill in. 

" Q. There is a terrible current down at Cache" Creek now ? — A. Yes, sir. A barge 
came up, and had to make three trials to get up. In 1864, in the measurements I made 
in the big flood, we had 34 feet at the Wright Place. It spreads out and drops very 
rapidly. Just in the caiion above there they had 45 feet. Take it near Princeton, and. 
the average depth would not vary much from 24 feet. When you get here it decreases, 
and at the head cf the islands they had 24 feet on an average — 14 feet 6 inches above 
low water. As you go on down it is not more than 2 or 3 feet above the highest tide, 
so when you get below there you don't notice it. In the straits of Carquinez we only 
noticed a rise there of some 5 or 6 feet above high tide. 

"Q. What effect does this sediment have, or did you notice any material change in 
the American River ?— A. We used to have quite a little river here in early times ; now 
there is none 

u Q. What effect does the filling of the American River have on the city of Sacra- 
mento here t — A. The more it fills up the easier it will overflow, making it necessary 
to build higher levees. It would not make very much difference as long as the levees 
are away above whether it fills up or not. 

Mr. Ostrom. You are acquainted with the Feather River. Can you make any 
statement in regard to the Feather, the navigation and the condition then and now ? 

"A. I have not navigated the Feather River but little of late years. I have been 
up but once or twice, within the last five years, in low water. I will say that the 
Feather River is not as low, does not go as low in its banks, take the average from 
Fremont to the mouth of the Yuba. 1 don't think it goes as low in its banks by 8 feet 
as it did then. We have no shoal water now. There is not more than two-thirds the 
water in it now that there was then, because the whole river-bed has filled up. The 
shoal places are no shoaler now than they were in 1849 ; but it confines itself to a canal 
now, whereas it used to be quite a river. 

"Q. It used to be that the steamer Governor Dana ran on this river in summer 
time ? — A. Yes ; they used to run the boats in summer. This is the Governor Dana, 
No. 3. This new boat is about 160 feet long, and the old boat was only about 115 feet. 

" Q. What is the difference in the draught of water ? — A. I think the old boat used 
to carry not less than 20 inches of water, perhaps nearly 2 feet. She never went up 
in low water. The second Governor Dana used to go up in low water ; it was about a 
15-inch boat. The present Dana draws heavier ; she draws about 22 inches ; called a 
2-foot boat. 

"Q. About how much would you average the filling of Feather River? — A. There 
used to be a good many deep holes there. The average filling of the shoal water is, say, 6 
feet right at the mouth of the river. But if you take the deep holes, and there used 
to be a good many of them, the average from the mouth to Marysville would be at 
least 12 feet. The carrying capacity is filled up or decreased about 6 feet. 

" Q. Does that include the whole filling along the banks f — A. There are a great 
many bars now where there used to be none. The carrying capacity between the nat- 
ural banks, without reference to any cubic measurements, would be at least one-third 
less than it used to be right at the mouth of the river. 

" Q. Would the same rule hold good as far as Marysville ? — A. I think it will hold 
good as far as Marysville. 

" Q. About how deep were the banks of the river in former times ? — A. In places it 
would go over 20 feet. There are other pi aces where there is notover 18feet. There are 
places where these banks vary with the width of the river. Some of these people 
built their levees without a surveyor, and the floods go right over them because the 
river varies more in high water than it does in low water ; it will change. Even sur- 
veyors find they have to make calculations for the bends. I presume the height of 
the banks at the mouth of tho Yuba and the mouth of the Feather would have been 
about 20 feet. 

11 Q. You stated that you thought there was not more than two-thirds of the water 
coming down tho Feather River. How do you account for that ? — A. It is used up in 
mining and for different purposes, mining mostly. 



PUBLIC LANDS. 155 

"Q. It has been suggested by one or two witnesses the loss was to be attributed to 
the water seeping through the sand. — A. There is no doubt but that has somethiug to 
do with it. This light sand all carries more or less water. 

" Mr. Garver. Has the river scoured down this winter to its original channel ? 

" A. Take the average from shore to shore it has scoured down 5 feet 7 inches. It 
has scoured out that much since the low water of last summer. 

" Mr. Ostrom. Is it not your experience that these rivers scour out in time of high 
water, and then fill up again in low water more than they were filled before ? 

" A. I think the fill is not so great now as it was several years ago, on account of 
the increased grade." 

Eeport of the committee on mining debris, twenty-second session general assembly 
of California. 

D. OSTROM, Chairman, 
REUBEN KERCHEVAL. 
BYRON WATERS. 

I wish to impress upon the Commission that this is sworn testimony. 

Captain Foster testifies that the Sacramento has filled 22 feet up to the year 1877, 
and at the mouth of the Feather River it has banked up until it dams back the water 
of the Sacramento River some 12 miles up the Sacramento River. 

Another gentleman, who was then running a steamboat on the Sacramento River, 
states that at the Hog's Back, and along for a number of miles above that, the chan- 
nels they run in are pretty nearly as deep as they had been. Perhaps they had less- 
ened some few feet in depth, but they had closed in some thr^e-fourths of a mile or 
more. In other words, where the river had formerly a carrying capacity of a mile in 
width and 16 or 20 feet in depth it now has a carrying capacity of less than a quarter 
of a mile in width and 4 to 6 feet in depth. 

The same might be said of the Sacramento River. While the carrying capacity 
along the city front has. increased 8 or 10 feet or more, on the other side of the river 
it has decreased, and the average amount which the river has filled is some 22 feet or 
more ; so that the carrying capacity of. the channel is on the Sacramento side of the 
river. 

A gentleman also stated that he thought the filling was not in the shallow places, 
but he said it was only filling in the deep places. I would beg leave to say that while 
I am not an engineer I can see that it fills from both sides of Feather River, and it 
fills rapidly. Where there was water fifteen years ago 15 feet deep willows are grow- 
ing to-day and high water flows over the tops of them. That can be seen at any time ; 
and it is not in one spot, it is all the way to a greater or less extent. 

That Commission to which I refer also took testimony in regard to the filling of the 
harbor of San Francisco, and this testimony corresponded to some extent with some 
statements I have seen brought forth by the Coast Survey recently, that Suisun Bay 
was rapidly filling ; that there was a large area on the borders of the bay that the 
tide now hardly ever reached the surface of where was formerly deep water, and that 
this filling of the harbor is rapidly going on. 

By Mr. Craddock : 

Q. If Mr. Ostrom will permit me, I would like to interrupt him a moment. The fact 
I wish to call attention to is this : there has been some contradiction in regard to this 
sedimentary deposit which is brought down by the water. You have had some little 
experience in farming it yourself, and I would ask you this one question : If the laud 
is susceptible of cultivation, will it be where it is covered with the debris to an extent 
that a plow will not reach the original soil, say, plowing from four to six inches deep — 
is it susceptible of cultivation in that case ? — A. My experience would only correspond 
with that of gentlemen who have farmed this class of land ; and while I have heard 
the statement that it is susceptible of cultivation, I slightly disagree with it; and, so 
far as has been developed, the exception only proves the rule, and that rule is that this 
class of land, notwithstanding all the chemical forces that may be put upon it, will 
not produce if it goes to a depth of ten inches. There is no producing quality in it 
for grain. If you can reach the original soil and intermix that with this sedimentary 
deposit, perhaps you can raise a crop after a fashion, but it is not a good crop. One 
class of this debris is sand, and which is devoid of all producing qualities ; it is an en- 
tire waste, in my opinion, even where it is four inches deep. I consider it a very great 
injury. 

I wish to state one thing more : There has been a statement made by Mr. Redding 
(at San Francisco, I believe) — and he pretty much the same statement before this 
committee — in regard to disposing of these tailings ; he said it might, by engineering 
skill and proper plans, be put upon the tule lands between the Feather and Sacra- 
mento Rivers, south of Bear River. Now, while that may be done, I rather doubt it. 
I think it would be far easier to retain it in the foot-hills for this reason : That in en- 
deavoring to carry it into these tules (if it was desirable to put it there and it could 
be done) you fill up your channels in the summer-time, and you can only keep your 



156 PUBLIC LANDS. 

water in that channel by levees. Whenever a flood comes that channel is tilled up,, 
and it overtops your levees, and it is all gone to destruction. If Mr. Redding or any 
other man can show me how they can prevent this filling-up of the channels then I 
may believe in the filling-up of these tules, and they can accomplish one whenever 
they accomplish the other. 

Personally I do not know that I have anything further to say. I would take the 
liberty of filing with the Commission the report of that committee. 



Testimony of William H. Paries, Marysville, Cal. 

. Mr. William H. Parks, of Marysville, testified, October 1, as follows : 

As regards the applicability of the present system of homestead and pre-emption to 
the wants of the country, I am of opinion that it would be expedient to retain the pre- 
emption law, with an amendment doubling the quantity amau has a right to pre-empt. 
I would make it so that a man could file his pre-emption claim before survey, and then 
require him to conform to the survey as afterward made, which is practically the law 
now. I would then offer all the land at public sale, as the old law used to. After the 
offering of the land I would leave it open to private entry ; at the same time I would 
still retain the pre-emption law to this extent, that a man might have it when he com- 
pleted the payments on his land ; that is to say, I would open it to public entry or 
pre-emption as a man saw fit to take it. If he bought at public entry, he could buy 
an unlimited quantity; if he wanted time to make his purchase of the government, 
which time I should be in favor of giving him, he should confine himself to 320 acres. 
If he really wanted a farm under the pre-emption law he could pay for it. I would 
give him, say, a year. My idea is to enable every man who wants a farm to have an 
opportunity to get it. Under that arrangement the homestead law would be unneces- 
sary, but I see no objection to allowing it to remain on the statute-books. After that 
I would give a man 320 acres more if the 160 acres he has is not sufficient for him to 
make a comfortable living for his family, for the reason that the profit in our staple 
article, grain, is not sufficient to enable a man to maintain a family on what he can 
raise on 160 acres, particularly on the Pacific coast, where they have to resort to the 
expedient of raising crops only every other year. 

I see no objection to maintaining the homestead act if a man be allowed 320 acres r 
but I would so frame the law as to make it an inducement for the greatest possible 
number to go into agricultural pursuits; for, in my opinion, too great a proportion of 
the American people are professionally engaged, and there should be every inducement 
thrown out by the government to extend agriculture and reduce the number of people 
entering into professions. To illustrate : there are two mercantile houses where there 
should be one ; double the number of attorneys there should be ; double the number 
of doctors ; twice as many people engaged in other learned pursuits as is necessary 
for public convenience, and public policy should be directed toward making more pro- 
ducers, and, by intelligent laws, we should make it an inducement for men to settle in 
new countries. The present system of land-parceling does not hold out sufficient in- 
ducement, and I would double the quantity of land that might be pre-empted and give 
plenty of time to pay for it, or double the quantity they should have under the home- 
stead law either. After all have had an opportunity to pre-empt, then all should have 
an opportunity to come into competition for the purchase of land at public bidding. 
I would leave it optional with any one to buy it at the government price, i. e., restore 
the old law about that. 

My opinion is, as to the amount of wheat raised over the State, that the average 
would equal 16 to 18 bushels per acre. The average has been reduced in the State by ex- 
tending farming to the least fertile lands, the red lands, where they do not yield to exceed 
10 to 12£ bushels per acre, and that only every other year. The choice lauds still main- 
tain an average of 30 bushels an acre, and some of them go as high as 50 and 60. The 
cost of cultivating an acre of land, including harvesting, sacking, and hauling to the 
depot, does not exceed $12.50 per acre. It will bring on an average 90 cents per bushel. 
I make this calculation in the supposition that a man hires everything, machinery, 
teams, &c. When a farmer puts in his own labor and horses and machinery of course 
he reaps some little result. Even if he employs his team and himself he does not make 
much money. I think the cost of production will perhaps run a little less than $12.50 
per acre. 

Taking the public lands still remaining undisposed of within my knowledge, they 
are best adapted for grazing purposes. As a rule they are not adapted to raising 
cereals, with some few exceptions, and in the exceptional cases they can hardly be made 
available for raising cereals for want of transportation. There are some valleys un- 
disposed of in the State which, had they the means of transportation, could be utilized 



PUBLIC LANDS. 157 

for grain-growing purposes. The foot-hill lands are adapted to vineyard and fruit- 
growing, but I do not think that industry can at present be prosecuted successfully, 
for the reason that there is only a limited market for our fruit. The wine interest is 
new and is entirely experimental, aud our inhabitants not being accustomed to the wine 
business, many fail for want of knowledge, and no man with moderate means can take 
one of these farms as a gift, plant it to a vineyard, and make a living off of it and main- 
tain himself until he can make a profit off his wines. I believe our soil is well adapted 
to vine growing, and when our State has a greater population to consume wines and 
a greater population to reduce wages it will become a great wine-growing State. At 
present I do not consider it a profitable industry. 

The foot-hills are capable of producing fruits, but it is not known how far up the 
lands can be thus utilized. A very small proportion of the lands capable of cultiva- 
tion can be brought into use for that purpose without irrigation. In fact there is not 
perhaps over one-third of such lands that can ever be cultivated except by manual 
labor ; it cannot be done by plowing. Crops in this part of the State seldom fail for 
want of rain. The land is broken into small patches by rock. Water used in irriga- 
tion is derived from little mountain streams. There is no system of irrigation and 
very little irrigating done in the northern part of the State. It has been demonstrated 
that our fruits and garden xDroducts are much better without than with irrigation. 
The idea of irrigation has long been abandoned ; cultivation is all that is r.. quired. 

Our rainfall, which generally occurs between November 1 and April, averages from 
8 to 30 inches in the northern part of the State, and at the extreme northern boundary 
sometimes runs as high as 36 and 37 inches. The rainfall of course increases as we 
approach the mountains. 

It is almost imxjossible to say how much land is required in this section to raise a 
head of beef. There is no constant raising. Our pasturage has been found by driv- 
ing stock to the mountain valleys and mountain sides, where they have unlimited 
range. There are no large herds of cattle here. A considerable portion of our beef 
is fattened in the valleys adjacent to and in the southeastern portion of Oregon. 

To keep a flock of sheep well in this country between December and May in the 
foot-hills it will take an acre to the sheep, and then they must be moved either to the 
mountains or to the low lands for summer grazing. This would take about another 
acre, making two acres required for the support of one sheep. 

The supply of water in this section is derived entirely from streams heading in the 
snow-clad mountains, L e', from natural sources. Nothing is done here in the way of 
obtaining water through artesian wells. 

The general kind of timber in this section of country is oak in the valleys, and in the 
foot-hills what is called nut-pine. Then we have spruce and pitch-pine, and. as you ap- 
proach the summit of the mountains you come to the sugar-pine. I think I would 
dispose of the public timber lands by opening them to public purchases in quantities 
to suit. I should not impose any restriction as to the quantity one individual might 
buy, leaving the land open, however, to private entry at the government price of 
$1.25 per acre. Where reservations of public lands have been made which it is 
deemed advisable to restore to the public domain, I would always offer them at public 
competitive sales, in all cases reserving the right to a man to settle there if he chose 
the land as a homestead. I would not make any distinction in the price between the 
^different kinds of timber, but would simply put it up at public auction, and if there 
was any difference the public would find it out and the government would reap the 
benefit ; and the best evidence in the world that it was not worth more than a private 
entry would be that no one would purchase it. I would only limit the quantity of 
land a man should have when I gave him special privileges, as under the homestead 
and pre-emption laws, and in all other cases I would take the limit off. 

As regards timber, I believe it is the true policy for the government to get its timber 
lands into the hands of private individuals, and that in such hands the timber could 
be better protected than it is now. The fact that speculators buy lands and hold them 
does not make such lands more valuable ; on the contrary, it reduces the price. That 
is the experience of almost every one. Those who bought wild lands in this State have 
and will sell for less than they paid. There is sometimes an extraordinary inducement 
to get hold of wild lands near or along railroads, and I would in those cases offer the 
lands at public auction and let every man have a chance, without any limitation as to 
the quantity he could buy. 

Q. As a matter of history, has not the experience of this part of the country and of 
other countries demonstrated that when all the timber lands passed into private pro- 
prietorship the timber simply was stripped off the land and the country became tree- 
less ? — A. I see no inducement for a man to strip the timber land, any more than there 
would be for him to make his agricultural land worthless. A man would maintain his 
own timber lands more carefully than he would those of the public. At present the 
value of the lands may be vested in its timber, but when we have the population on 
this coast that we have elsewhere the land will be valuable for more than the timber. 
There is probably as large an amount of timber growing to-day in California upon the 



158 PUBLIC LANDS. 

lands wliich have been stripped as there was upon them formerly, and the lands which 
have thus been denuded will in fifty years be covered with a respectable growth of 
timber, much thicker on the ground than before. And I believe that here now, in the 
foot-hills, there is as much timber growing as has been cut off. The best, cheapest, 
and safest manner of protecting timber in this State is to reduce it to private owner- 
ship. In my judgment the timber of the foot-hills will reproduce itself in one hundred 
years as regards quantity, though the trees would not be so large as at present. If the 
government sold off all its timber lands to parties who should market it, I do not think 
the water supply would be affected one way or the other. Our rivers are fed by rain 
and snow fall, principally from snow, and if the timber was cut off I do not think it 
would materially affect these streams. I think too much credit is given to forests as 
regards their power to produce rainfall. This coast depends upon certain currents of 
air for its rain and snow fall, and therefore I do not think the absence of trees would 
affect us materially. But suppose they did, my answer is that the forests would be 
better protected under private ownership than they could be under governmental 
supervision. They will be preserved longer and more completely. 

The mineral lands in this State are mainly distributed through the timber belt, but 
they are not, as a rule, located in thickly- timbered sections. 

Under my proposition for the disposal of timber lands by private land entry I would 
not propose the reservation of such mineral lands as are contained within the timber 
districts. I do not see what difference it makes to the government how a man gets the 
title to a mine ; whether he pays the government $4 or $20 for it. If a mine is worth 
developing, the man who buys it is as much entitled to the property as the discoverer. 
The country is equally benefited by the wealth taken from it. It is a pretty difficult 
thing to determine just when a piece of land is worth more for mining than it is for 
agricultural uses or timber, and in disposing of doubtful land I think it will be better 
to reserve the right to lodes, quartz veins, &c, contained in it. Sometimes the question 
whether land contains mineral or is only agricultural depends upon how a fellow wants 
to prove it. I think perhaps it would be well to leave it, in doubtful cases, free to the 
prospector for mineral. When a man was actually developing a piece of land under the 
mineral laws, he should be allowed to go ou ; but it is a bad thing for a man to have a 
piece of land under control and not know whether he wants it or not ; and there should 
be some limit as to the time he should hold it. 

As regards the origin and destructiveness of forest fires, my opinion is that under pri- 
vate ownership they would be better cared for than under the government. Fires are 
started by men generally through carelessness, and I know of no way to control them. 
But parties owning the lands would be directly interested in putting them out. 

As regards the ascertainment of corners of public lands in this section, it was orig- 
inally a very difficult thing. They are now pretty well established. They are estab- 
lished by the county surveyors. The government only sectionized the highlands and 
left the swamp lands out, and they were surveyed by the State surveyors. 

It is my opinion that the government should reserve the right of easement on every 
section of land of at least 33 feet each way for a public highway, and that such reser- 
vation should be made when the title passes to the iudividual. It has been a source 
of more annoyance and expense to settled countries to obtain the right of way for 
roads than it would have been to have bought all the farms across which the roads 
ran. In this and the other States the government could reserve 66 feet on each sec- 
tion line for public highways, and I would recommend that be done in all future sales m r 
and it should then be left to the States to determine whether or not such right of way 
should be made available. In Sutter County the State paid more for right of way 
than the owners of the farm paid for the land originally. 

There is one qualification I want to make to the above statement. I am not in favor 
of granting large sections of country to any individual or corporation, and when I 
suggest taking the restriction off as regards the amount of land a person may purchase, 
I do not think it is good policy to grant whole sections of country together ; but when 
put up for competition and right of entry I would take the limit off. 

As regards the idea embodied in the so-called Plumb bill, I do not like the idea of 
selling a section of timber to a man with restrictions as to what kind of trees he shall 
or shall not cut. The very best guarantee that timber will be taken care of is found 
in the fact that a man owning it will consult his best interests, which will generally 
coincide with the country he lives in. If he wants to use a piece of land for timber 
purposes, he will take care of it ; and if he wants it for agricultural purposes, he will 
do likewise. My opinion is against that proposition. 



PUBLIC LANDS. 159 

Testimony of Charles M. Patterson, register, and L. T. Crane, receiver, Marysville, Cat. 

To the honorable the Public Land Commission, San Francisco, Cal. : 

Gentlemen : Referring to your circular, we have to say that we occupy the posi- 
tions of register and receiver of the land office at Marysville, Cal. Have held said 
positions for more than four years last past. We have each lived in Yuba County, 
California, since 1852 ; have neither of us ever acquired or sought to acquire title to 
public lands except in one instance each, and that for mineral lands. 

The expense of acquiring title to the public lands in uncontested cases, so far as our 
experience goes, is but little beyond the legal fees and commissions. In some instances 
a fee is paid to attorneys to hasten the issuance of a patent ; and some parties, incom- 
petent to make papers, pay small fees for having it done. 

Some changes in the practice under the present laws, we think, might be made in 
the interest of claimants and not detrimental to the government. For instance, in 
tiling either homestead or pre-emption claims, if parties were required to first clear 
the record there would be more security and less litigation. In some cases we think 
pre-emption claims are filed over others through malice and for the purpose of hinder- 
ing and annoying bona-fide claimants. When two or more have claims to the same 
land, neither is disposed to make the improvements they would if they knew their 
claims were valid. 

Under the present practice a person abandons his homestead claim before it is re- 
stored to the public domain, his abandonment must be transmitted to the Commis- 
sioner, and his order of cancellation returned to the local office. We can see no reason 
why, when the claimant files his written and acknowledged relinquishment, that fact 
should not be sufficient to authorize its cancellation and the restoration of the land. 
Evil practices have grown out of the present rule, such as the employment of attor- 
neys in Washington to telegraph the date of the mailing of the honorable Commis- 
sioner's letter of cancellation, thereby preventing the party, who perhaps may have 
bought improvements, from obtaining the land. 

The rule that holds in regard to homesteads of deceased claimants we think might 
be changed. In cases where the parties have died intestate, leaving no heirs and no 
estate other than their claim, which is not of sufficient value in many cases to justify 
an administration, but would be taken if clear, it would seem that if complaint is 
made for abandonment the publication of the citation ought to be sufficient notice to 
any one haying an interest in the matter. In such cases the homestead remains valid 
the full seven years under the present rule. 

There is a question whether the order withdrawing the large body of lands because 
of mineral was a judicious act. Even if it was then the best, now that mining has 
become a secondary interest in this State, would it not be in the interest of the peo- 
ple to reverse the position, and place the mineral claimant on the affirmative ? Along 
the foot-hills are many tracts well adapted to the growth of fruit, and particularly 
vineyards. The cost and trouble of disproving the mineral character restrains per- 
sons from settling upon these lands, and they remain vacant, used generally for herd- 
ing sheep and cattle upon. In some cases those who occupy these lands in that man- 
ner keep settlers off by representing that they contain minerals. 

In this connection we will say that 160 acres of foot-hill land is not enough to jus- 
tify settlers in attempting to support a family upon. But few acres probably of the 
160 would be adapted to orchard, or vineyard, and the remainder would not be suffi- 
cient for grazing purposes. Feed for stock is produced on those lands but a few months 
in the year, and then in a limited amount. Three hundred and twenty acres is as 
small an amount of land of that class as we think claimants should be limited to. 

Really the best way to dispose of the public lands would be as soon as surveyed to 
offer them at public auction, and thereafter allow them to be sold at private entry, 
Past experience in this State indicates that the evil of large holdings will cure itself. 
Now that the new constitution has been adopted and lands are to be taxed for their 
full value, no large bodies will be retained by speculators. If the timber lands were 
thus disposed of, the forests would be more likely to be guarded against fire and 
waste. The act for the sale of timber lands has been in force since June, 1878, and 
yet, although there is a large amount of fine timber land in this district, not to exceed 
half a dozen entries have been made under it. True, the lumber business has been at 
a standstill during that time, but, in our judgment, that is not the only reason so few 
have availed themselves of the provisions of that act. The quantity is too small. 
The only way to acquire a sufficient quantity to justify the erection of mills is to evade 
the law and procure others to make sworn statements to what is not true — that they 
are acquiring the lands for their own use. 

In regard to changing the manner of making surveys, we are satisfied that if the 
proposed method had been first adopted it would have been much more accurate and 
better every way, but doubt the advisability of changing from the rectangular system. 



160 PUBLIC LANDS. 

Oar experience leads us to think that the same rule should hold in mineral that 
does in agricultural lands — the adverse claims should be disposed of by the Depart- 
ment. 

CHAS. M. PATTERSON, Register. 
L. T. CRANE, Receiver. 
Marysville, Cal., October 6, 1879. 



Testimony of Dana Perkins, Placer County, California. 

San Francisco, October 10. 
Dana Perkins, of Rockland, Placer County, California, testifies as follows : 

I have for some time been in the employ of the Central Pacific Railroad Company, 
disproving the alleged mineral character of lands within its limits, declared to be such 
by the deputy surveyors whose reports went up to the Commissioner of the General 
Land Office and then to the Secretary of the Interior, at whose order they were with- 
drawn from settlement because of the mineral alleged to be contained in them. I 
have proved 40,000 acres of those lands that were shown to be mineral upon the maps 
to be non-mineral. The railroad takes all the odd sections, and when they find any 
mine on those sections they leave them as mineral land, and do not question its char- 
acter ; but when we do not find existing mines upon the section, that proves its non- 
mineral character. We have never failed in any instance where we have undertaken 
to show the non-mineral character of the land. I do not think there are mines on one 
acre in five thousand of what is now called mineral land. 

Question. How would you correct this designation of mineral land when there is no 
mineral upon it ? — Answer. I do not think it can be done in any different manner from 
what it is done now, but the Secretary has declared it to be mineral in some places 
where the deputy surveyors had declared it to be agricultural land. The whole foot- 
hills country, for eighty miles in length, ought to be declared agricultural land. If that 
land was open to settlement it would sustain a great many thousand farmers, and they 
would be promptly occupied if this ban was taken off of these lands, and they would 
then be settled up. They are worth more for agricultural purposes than they are for 
mineral. They are not being mined at all, and they will never again be worked as 
mineral lands. It has all been worked out. It takes but a short time to work out sur- 
face claims, and these lands, having been worked out, have now been laying idle for 
thirty years. I think these lands ought to be declared agricultural instead of mineral, 
and let the proof fall upon the miner. I think that when a man makes a settlement 
upon that land he should get title to it. I think if a mine is alleged to exist on land 
the miner should prove its existence, and that otherwise the land should be classed as 
agricultural. I think there should be a limitation of the time within which he should 
pay for his mine. Give him one mine and let him pay for it. Throughout the min- 
eral belt there are many men who have sheep and cattle, and they try to keep the land 
under its mineral designation, so that they can continue using without paying for it, 
and get the use of it for nothing. By an agreement between themselves the stock men 
divide up the land into several tracts for their own use. They are not taxed and the 
country derives no revenue from them. 

There is also trouble with these shake-makers. They will cut down a sugar-pine 
that will make ten or fifteen thousand feet of lumber and take out one or two of the 
best cuts from it, and then leave it. These timber lands should be sold. I would di- 
vide it up into sections and grade the price. The railroad company sell their lands for 
five, seven and a half, and ten dollars per acre, and the government could obtain as 
much as the company. The railroad companies sell their other lands for $2.50 per 
acre. If the government parted with its title to the timber lands, they would be cared 
for If there was no law passed for their sale I should put them under the control of 
the district land offices. They are not protected now, and are being divested of their 
timber by shake-makers, fires, teamsters, &c. There is annually a great destruction 
of timber, and if it goes on much longer the timber land will be greatly injured. The 
timber here reproduces itself — the same kind of timber. There is a great deal of fallen 
timber all through the forests, which 1 would give to the settlers. This would benefit 
the timber by taking out this combustible material. I do not think any person should 
be allowed to cut timber, except for his own uso. In regard to saw-mill men, I would 
sell them tracts of land for saw-mill purposes — all they wanted. I would sell the tim- 
ber and land together and give the mill men the title to the land. I would sell them 
the mining interest too. I would not reserve subterranean rights. The government 
is issuing patents now in this mineral belt and it reserves the mineral rights. I think 
there should be an absolute law that when a man purchases the land he shall be enti- 



PUBLIC LANDS. 161 

* 

tied to all there is on or in it. I would sell a man all the pasturage land he wanted 
at a graded price. It can all "be irrigated. I would sell it for $2.50 per acre. Men are 
all the time coming to me to buy land at that price. There is no offered government 
land. They don't buy it now, because they can't buy it. As fast as the railroad com- 
panies can disprove the mineral character of its lands they are being sold. 

Q. In Colorado and California, where large portions of land have been set aside as 
mineral by the Secretary of the Interior, it costs a person about $28 to prove the non- 
mineral character of that land. You think the remedy for that is to make the miner 
prove that it is mineral ? — A. Yes; it is the same in California as it is in Colorado. A 
man has to prove the non-mineral character of the land here, at a very great expense, 
and if there was a contest or some other man wanted to be bought off it would cost a 
good deal more. It is very burdensome and onerous on the settler to prove the non- 
mineral character of the land. It would give five thousand farms in the foot-hills if 
these lands were released, and that too of the very best grape-growing country in the 
world. Any of the foot-hills will bear grapes and fruit, and all that land is more val- 
uable for agriculture than for mineral. I think it should be declared agricultural and 
opened up for settlement. This one withdrawal is keeping a million of acres of land 
merely at the disposal of men who desire to prospect on it, to the detriment of the coun- 
try and of the State which it keeps from being settled up. 

Q. How can it be better done ? — A. I do not know of a.ny better way, but I should 
give the miners one year to make final proof on their lands, and then let all that is 
not paid for be declared agricultural land. As I said before, the placer claims are 
worked out here, and there is hardly any person now engaged in placer mining. The 
placer miners do not hold Their claims by filing in the United States Land Office ; they 
hold them by local regulations. The method of taking a placer claim is by several men 
staking out a district and each one taking his claim. There is not one man now work- 
ing in the rivers where there used to be thousands, but that land is still held as mineral, 
thus preventing it from being settled up. It was the best part of the State for fruit. 
It will raise the most beautiful oranges. 

Q. If that land need irrigation, as I presume it does, could you reclaim it through 
irrigation by saving the water in reservoirs along the foot-hills ? — A. No, it has to be 
brought in ditches from the rivers ; there is ample water there to irrigate with if it is 
used. The source is from the snows and runs that feed the streams, and if the water 
is taken out by the ditches irrigation can be made practicable over a very large area. 
I do not think there should be a national system of irrigation, though I really should 
not speak positively about that. There is a great deal of water still needed for irriga- 
tion purposes. The mining ditches are now selling the water for irrigation, which is 
required on all the foot-hills up to the timber belt. They raise three crops of clover 
and. alfalfa a season by irrigating. All these side-hills raise alfalfa. They cut two or 
three crops a year by irrigating. I know of many cases where three crops have been 
cut in a year. 

Q. Would you give a man a sufficient amount of land for a pasturage homestead ?— 
A. I think it would be a good idea. It is a good idea to let a man have plenty of land. 
Men want to fence their land, but they will not fence it unless they have a sufficient 
quantity. During four months of the year this land will graze cattle, and then they 
drive their stock up in the timber lands during summer, bringing their herds back in 
the winter. They like to have a sufficient quantity of irrigable land to raise grass. If 
the men owned this land they could only make it possible to live there the whole year 
round by irrigation. If the timber land is sold the stock men will buy it for small 
ranches, and would protect it and keep the proper trees for the mill men ; and if the mill 
men bought it they would sell the land to the stock men after cutting the timber. Under 
the present system they can't buy it, but if they had a chance to purchase it at not 
more than $1.25 per acre they would do it. I'm speaking now about California. I do 
not know anything of Nevada. All the sheep and cattle men in the State are buying 
the land wherever they can. I think it would take, on an average, ten acres to sus- 
tain a beef here, taking the winter and summer ranges together. If the title to these 
lauds could be obtained there would be no conflicts between the cattle and sheep men. 
Cattle men leave where sheep have been. 

I think these questions ought to be settled as soon as possible. These lands are 
held in severalty by a system of usage. If nothing else is done, they had better be 
held by common consent, but I think it would be better for the government to sell 
these lands. I would not compel the settler to leave. It would be better to charge a 
man something more, and not compel him to lie to get the land. I have lived here for 
twenty-nine years, and we are proving the non-mineral character of these reserved 
lands at the rate of 20,000 acres per month. 

11 L C 



162 PUBLIC LANDS. 

Testimony of B. B. Bedding, at San Francisco, Cal, 

B. B. Redding testified, at San Francisco, Cal., October 6, 1879, as follows : 

I have lived in tins State twenty-nine years. I have traveled from one end of it to 
the other, have lived in several portions, and am pretty well acquainted with the 
entire country. There are three sections of this State which are differently affected 
by the climatic laws. All of the lands west from the summit of the coast range and 
nearly to Point Conception are influenced by the fogs made by the Japanese Gulf 
Stream, which flows down this coast in a stream 200 miles wide. That water is colder 
than the surrounding ocean, and the wind blowing eastward across this cold current 
is cooled and gives rise to fogs. The moisture from this gulf stream falls on the coast 
range of mountains, giving them these nightly fogs. They are probably equal to 
three or four inches of water. This is shown by the crops. 

Question. In what portion of the State is agriculture possible and profitable with- 
out irrigation ? — Answer. It is profitable in the whole State of California wherever 
possible. Agriculture is possible wishout irrigation in the average number of years in 
the Sacramento Valley north of Stockton and west of the summit of the coast range 
of mountains, south of Stockton and as far south as Point Conception and Santa 
Barbara, and everywhere in the Sierra Nevada Mountains south of Stockton at an 
elevation of 2,000 feet ; for it has been found by observation that the increase of rain- 
fall on the western flanks of the Sierra Nevada is actually one inch over that part of 
the valley for each 100 feet increase in altitude. Except in very exceptional years 
agriculture without irrigation has not been practical in the San Joaquin, Tulare, and 
Kern Valleys below the elevation of 2,000 feet. So far as relates to climate and rain- 
fall, there are valuable lands in the northern part of the State in the valleys which 
can be readily cultivated, having sufficient rainfall annually. South of the line drawn 
through the center of the State in the valleys crops can only be raised by artificial 
irrigation. There are extensive tracts of land of good quality, so far as relate to 
constituents that go to form the soil, which would be valuable if water could be put 
upon them. Then there are on the foot-hills above this, lands valuable only for grass 
and for some oaks that grow upon them. Above these, again, higher up, are lands in 
the southern part of the State principally growing the yellow pine, which possibly 
could be cultivated, but which now have no value except for their timber. Then there 
are also vast tracts of land entirely desert, and made so by the fact that sufficient rain 
does not fall to produce vegetation. 

Q. I should like to have your opinion in regard to the change in the rainfall, i. e., is 
it decreasing? — A. I have no authority to base it on, hut I know it is Professor Whit- 
ney's and Lieutenant. Wheeler's opinion, and that it is the opinion of the surveyors 
who surveyed the different routes of the Pacific Railroad, that the rainfall in the 
lower part of this State was at one time very much more than it is now. The water- 
courses all show that at some former age of the world it was very much more, and 
that it has for some occult reason gradually lessened ; this is also true in the lower 
portion of the State, and upon these and similar circumstances I base my opinion. The 
rain-gauge records have not been kept long enough to obtain any definite results 
based upon rain-gauge records. It is my opinion that it is lessening, but I cannot give 
you any authoritative statement for it. This is certainly true on this side of the Sierra 
Nevada Mountains. When the trees are cut down they immediately reappear, not, as 
in the Eastern States, in other kinds of trees, but the same kinds come up thickly in 
abundance and grow abundantly and raifidly. 

In Grass Valley trees that were cut down in 1853 have grown up again and are 
about one foot in diameter. It would take fifty or sixty years to reproduce them of 
the same size as those originally felled. Whenever on the western slope of the Sierra 
Nevada timber has been destroyed it is immediately reproduced of the same species, 
while on the eastern slope of the Sierra Nevadas wherever trees are cut down no others 
come in their place, or very rarely. There are exceptional places where there is a gap 
through the mountains through which moist air comes, and in such gaps a few of the 
same species of tree will be reproduced, showing, I think, that the condition of things 
as regards the climate when these trees originated was not the same as it is now. In 
other words, when these trees originated on the eastern slope of the Sierra Nevadas 
there was more moisture than there is now, and it is one of the things that confirms 
me in the opinion that in the southern portion of the State the rainfall is lessening 
When you get north of Stockton the trees have not been cut down ; so you cannot 
tell, and besides there is plenty of rain there where the timber has been cut off. 

On the eastern slope of the Sierra, where is situated the Comstock mine, you very 
rarely see a second growth, while on the western side of the mountains they come up 
so thick that a rabbit can hardly get through. The moisture conies in from the Pa- 
cific Ocean, strikes on the western side of the Sierra Nevadas, ami here the trees are 
reproduced, but on the eastern side, where the clouds descend toward the desert aftei 
having been robbed of their moisture, the trees do not grow. 



PUBLIC LANDS. 163 

Q. I want to ask you about the destruction of timber south of the altitude where 
there has been abundant rainfall, say south of Stockton and south of the railroad. — A. 
The destruction is very large in the mountains near Bodie. The destruction by fire, 
principally, is enormous. I cannot tell what the proportion would be between the 
destruction by fire and the destruction by man. But the fires every autumn are im- 
mense. There is more destruction by fire than by man. 

Q. What, in your judgment, is the origin of these forest fires?— A. Hunters, camp- 
ers, sheep herders, and other persons traveling through the mountains set the fires ; 
and then, too, it is very dry in autumn in our mountains, and I have no doubt a great 
many fires are started by the friction of trees swaying in the winds and by lightning. 
I saw a fire the other day, up near the summit, where it seemed to me almost impos- 
sibJe for aDy one to get without ropes. That fire must have taken place naturally. I 
do not think the Indians generally set fire to timber. 

Q. How would you preserve the timber? — A. Let somebody own it; get the timber 
into private ownership, so that there will be somebody to watch and preserve the 
forests. 

Q. Will you suggest a law to accomplish that result? — A. Under the present law 
you can get 160 acres, but I should say seven-eighths of the Sierra Nevada is not yet 
surveyed. 

Q. Is not the execution of the timber laws under the present condition of affairs 
practically inoperative ? — A. For the want of surveys it is; and then we have not a 
demand for it yet. There is not population enough to demand it. The timber land 
is only valuable for timber purposes and grazing and agricultural purposes. This 
land is of small and exceptional value for agricultural purposes, and of slight value 
for pasturage purposes. Its chief value is for timber. If this land is to go into the 
hands of private individuals it will go into their hands because they want it for tim- 
ber enterprises, and some exceptional cases for grazing purposes. 

Q. Is it practicable, in general, for farmers to own their own timber ? — A. The valu- 
able timber lands on the mountains are at such an altitude above the valley where 
the cultivation of cereals is carried on that for a direct use they are unavailable to 
farmers. They are only available to the farmer through the railroads or by long 
transportation by team. Some of the valleys near the water-courses produce some 
scattering oaks, which are valuable for fire-wood only to the person who owns the 
land. The timber lands of the State of California that are valuable for building and 
manufacturing purposes are at an elevation of from 3,000 to 6,000 feet above the val- 
leys, and are not available for the use of farmers, because of their immense distance 
from the lands in the valleys. That is, they can be utilized only by the construction 
of railroads or flumes, or by long transportation by wagon. Persons who go into the 
enterprise of cutting timber for this market in the Sierra Nevadas ordinarily are 
required to invest a great deal of money in steam saw-mills. In some cases they have 
to construct short railroads and in others flumes for the transportation of their timber 
from long distances to the mills, and from them to the nearest available point for 
transshipment. The consequence is that it requires a long investment, and the saw- 
mill man is required to own a large tract of timber land to make his business profit- 
able and to warrant an investment of capital necessary to carry on the business. 

Q. How do these saw-mills now get their timber lands?— A. Each person connected 
with the saw-mill takes up a tract of 160 acres by filing declaratory statements in the 
land office. They get their employe's, each one, to take up 160 acres more. By the 
time that is cut off they move the mill to some new point and employ a new set of 
hands to get some other tracts of 160 acres. 

Q. If a man owns a saw-mill, as they do in the Sierra Nevadas, would it not be just as 
profitable to buy the logs of the small owners as ifwould to own the timber lands? — 
A. I cannot answer. The persons around the mill file on the land, and in the course 
of two or three years the small men sell out to the saw-mill owner. 

Q. Is not this general habit of appropriating the timber land due largely to the want 
of facility in acquiring title ? — A. Yes, sir. There has not been, until within a few 
years, any right recognized in any person as to the ownership of timber lands on the 
Sierra Nevada Mountains. The reason has been that the law compelled a man who 
wanted a title to the timber to take a false oath ; he had to swear that he wanted it 
for agricultural purposes. 

Q. Is there any law now in existence by which a party can honestly obtain title to 
the timber lands in sufficient quantities to be of value ? — A. There is not. A man can 
get 160 acres under the act passed two years ago, but frequently that is not enough. 
The land laws so tie up and hedge about the timber lands, and require oaths which 
must conform to the oath in the pre-emption of farming lands, that they are practi- 
cally inoperative, and they render it impossible for the saw- mill owner to obtain title 
to an amount of land sufficient to warrant him in investing his capital in the location 
of a mill and going into the lumber business. 

Q. In your judgment, would or would it not be wise to provide convenient facilities 
for acquiring title to the timber land in the present generation, and take some steps 



164 PUBLIC LANDS. 

for the preservation of timber for future generations ? — A. I should put them in the 
market and take chances that private ownership would care for them. Where they 
have had no ownership I note that on the western side of the Sierra Nevada Mountains 
the timber renews itself. I suppose it would do the same by planting on the eastern 
side of the mountains, and wherever the land gets into private ownership it becomes 
taxable. A man has something he can mortgage, something that he can raise money 
on, and he immediately feels a personal interest in it, for himself and for his heirs 
hereafter, and so he protects it and does the best he can with it ; but where it is left 
in the present condition the idea is to clear from it everything you can. I would 
reduce everything in the shape of public lands to private ownership in small tracts, 
so that it may all be held by private ownership. While in its present condition, it is 
excluded from taxation. 

Q. Are you familiar with the results of the indiscriminate sale to private parties in 
other countries— say in the European, for instance? — A. I am familiar with the land 
about the Mediterranean Sea. It was once a much more heavily wooded country, but 
it has ceased to be wooded now. In Italy they are rewooding the country by plant- 
ing olives, walnut, orange and various other trees, and are, owing to the increase of 
population, increasing the supply of food by replanting in Italy those trees that are 
of value to man. In France the cultivation of timber is kept up. You see there a 
strip three-fourths of a mile long with one kind of trees on it, and other strips with 
other kinds of trees on them. There is an immense deal of wood in France. Germany 
is very well wooded. No man has a right there to cut a tree, unless he brings the 
proof that he has planted two in its place. The effect of this is, that every farmer has 
to protect his trees. These laws have not been in operation very long, but long enough 
to have largely increased the growth of timber. 

Q. Would or would it not be advisable for this government to make some provision 
for the future in the matter of the timber land ? Why wait until the timber is all 
destroyed and then try to reproduce it ? — A. That would be the most profitable thing 
this State or the government could do to-day. Here we have a tree which existed in 
a former age of the world, and exists nowhere except upon this coast — nowhere except 
in the midst of fogs. This is the one place it exists upon earth. That isourredwood. 
It grows within the influence of the fogs ; it grows only where the fogs will reach it. It 
extends to the northern portion of the State, just to the edge of Oregon, and south to 
the bay of Monterey. It would pay the State to-day to spend a million of dollars in 
procuring the seeds of this tree and planting them, and preserving this kind of tree. 
Our climatic conditions are so different that we have not one tree identical with the 
Eastern trees. The nearest is the little juniper that grows on the snowy crest of the 
Sierra Nevadas. 

Q. As I understand you, the timber lands are of very little value except for the tim- 
ber ? — A. Timber is practically their only value. 

Q. And this timber is cut wherever there happens to be a market for it? — A. Only 
where there is a market, unless mines spring up in the country, and then the timber 
land is denuded. It might be wise for the government to pass such a law as would 
furnish the present generation with all necessary facilities for obtaining its timber, 
and at the same time making a reservation for the future. It is a question whether 
that could bo accomplished by reserving the fee to the land on which the timber 
grows. The main point is to make the people pay the taxes on it. Now they skim the 
timber off it and let it go. They should be made to buy the land. I would get the 
land out of the hands of the government and into private ownership. That land has 
no value except for timber purposes. 

Q. Don't you on your railroad lands see that your timber is protected or taken care 
of? — A. No, sir; we sell the land as rapidly as possible and let the owner take care 
of it. The railroad company has all kinds of propositions to strip the timber and let 
the railroad keep the land and pay taxes on it. It would not do for the government 
to sell the timber in alternate blocks. They would steal the timber on the go\ em- 
inent blocks and hold on to their own. Sell it, get rid of it, turn it into money, and 
let the owner manage his own interest. I suppose the result of carrying out such a 
proposition as mine would bo this: suppose the government would allow a mill com- 
pany to buy, say at five dollars per acre for cash, at private entry, all the land on one 
slope of the mountains where the timber could be got. That particular saw-mill 
company, to use that timber land, invests fifty or seventy-five thousand dollars in a 
timber and saw-mill enterprise; then the company could go there with its saw-mill. 
It would know just exactly what timber it had to cut, and how long it would take to 
cut it ; bat no man can afford to make his investment without holding that amount 
of land. His personal interests would induce him to preserve that timber from lives 
and from neigh boring saw-mills. He will have gone into the business with l;is eyes open. 
He knows what his horses and oxen cost, and he knows his market facilities, and it 
has been a straight, honest transaction between him and the government, and when 
he has taken out the timber for three, four. live, six, or eight years he will know that 
that is the end of his investment. Then that tract of land he will sell to sheep and 



PUBLIC LANDS. 165 

to cattle men, and it will still be in private onwnership and used for grazing. That 
seems to me a sensible, practicable way of disposing of tbe timber question. 

Q. As a matter of fact, do not tbe large mill owners own their mills now ; take, for 
instance, Tahoe County ? — A. I think they do. That company is composed of wealthy 
men, and had the monopoly of supplying all these mines. They deemed it advisable to 
obtain title to the land because they had. a monopoly of supplying the limber for these 
mines and knew of a certainty what they would need ; hence they acquired title to 
those lands. 

Q. Does the fact of their owning that large body of land bave any restriction upon 
their cutting the timber upon the government land? — A. I do not know. 

Q. Is not the timber in their district denuded? — A. Yes, in tbeir immediate vicinity. 

Q, Would the fact of the private ownership of timber lands prevent the public lands 
from being stripped of the timber? — A. The railroad takes care that its timber is not 
stripped. It owns it, and goes for a man who takes that timber. They are enabled to 
protect their timber, and they protect it for the same reason that one would protect 
his pocket. ■ 

Q. If a corporation can protect the timber because they have much wealth and means 
can a private individual do that ? — A, Yes sir. If I had a tract large enough I would 
protect it. I would not buy six hundred and forty acres unless I had a saw-mill or 
expected very immediately to sell it. I have bought some timber lands and obtained 
title to them, and am holding them, and have a man to see that there is no destruction 
until I get ready to sell them. Individuals buy timber lands for saw-mill purposes. 
There is none bought for speculative purposes. 

Q. Would not the placing of these lands in such possession promoting private owner- 
ship practically operate as simply establishing a nucleus from which they could operate 
upon the adjoining timber land belonging to the government ? — A. No, sir ; I think not. 
I do not think a man would invest fifty or seventy-five thousand dollars in a saw-mill 
without a certainty of really holding the timber, and if all the timber land in the vi- 
cinity of that sawmill had not been already purchased from the government they 
would take very good care to purchase it, for if they did not the neighbors would enter 
it and make them pay for it. There is no speculation of the timber land in California. 
There has never been ; it is not practicable that there should be. There is no danger 
of a monopoly of the timber land ; even if there was, they are not yet open to private 
entry. The timber lands of California extend for 500 miles along the flanks of the 
Sierra and Coast Eange Mountains and are at least 40 miles wide ; and there is not 
money enough to spare in California, eyen if they were taken at private entry, to pay 
taxes. My idea is that they should be taken at private entry. 

Q. Assuming that these lands should be sold at private entry, what price would you 
pay for them. — A. The railroad has ascertained that timber lands in the Sierra Nevada 
Mountains are worth from f>4 to $10 per acre, dependent upon the thickness of growth 
of the trees and facility of transportation of lumber, &c, and the average would be 
from $4 to $10 per acre. If the government would sell these lands for S3 or $4 per acre 
they would not be taken upon speculation but by men who propose to make money 
from putting the timber into lumber. 

Q. Do you think there should be a difference in price for the different kinds of tim- 
ber ? — A. No ; the price should not be fixed upon the kind of timber but upon its thick- 
ness. We have no hard woods'in the Sierra Nevadas. Hard wood grows here, but it 
is not available for manufacturing purposes. The six months of dry and six months 
of wet weather make our hard- wood timber so brash that it is not available for man- 
ufacturing purposes ; though most hard woods do not grow high up on the Sierra 
Nevadas, they grow in the foot-hills. We have no hard wood of any sort, except a few 
oaks, above the elevation of three thousand feet. Above that elevation are the forests 
of pine, spruce, and fir. 

Q. Would you sell the ordinary Sierra Nevada pine for the same price as the ordinary 
nut pine ? — A. The nut pine grows where oaks grow. 

Q. Would you sell those two trees at the same price ? — A. If it could be properly 
done when the lands are surveyed — if the surveyor was an intelligent man he should 
be made to grade them for the quantity and quality of the timber upon them. These 
township plats would then be the guide for the land office in selling the timber at dif- 
ferent rates. You would require an honest man for that work, and should pay him 
more money than he is paid now. You cannot do good work for the money now paid. 

Q. Can you suggest any system by which the lands can be sold unsurveyed ? — A. No, 
sir. 

Q. Yet without selling them unsurveyed would this system of private entry amount 
to anything? — A. I don't see how it could be done. You might let the district land 
offices appoint men to sell the timber for the stumpage, but let it be surveyed. It can 
be surveyed as rapidly as required. 

Q. Would it not be necessary in order to protect that timber to go a step further, and 
simply sell those lands which are surveyed and provide some mode by which unsur- 
veyed lands can be obtained ; for instance, in a newly discovered mining district ? — 



166 PUBLIC LANDS. 

A. It should be the duty of the surveyor-general, when a new mining district is 
opened, to run lines connecting it with some survey, and then survey it that the miners 
may attain title to the timber land in the vicinity of the mines. 

Q. Would it not be wise to prepare a system by which you would have to wait until 
the survey is made to dispose of the timber ? — A. I don't think you can do that unless 
some man is appointed to collect the stumpage. I would provide means so that when 
a mining district is started the land can be surveyed. I would have Congress make an 
appropriation for a fund out of which the surveyor-general could pay for surveys made 
out of the ordinary course of surveys, progressing as the demands of the settlers re- 
quire. Then, when in the new mining districts a new settlement is made, this fund 
could be applied directly to the survey and settlers would thus be enabled to obtain 
their title sooner. 

Q. Will the lands that need to be surveyed be surveyed? — A. I think that would be 
attended to properly. 

Q. Would you have the surveys made only to the extent required by the public ne- 
cessity, then?— A. Let me say that the law has always been made applicable to agri- 
cultural settlements, and it has grown into a rut of that kind. 

Q. Under that law does it not result that the lands which are really necessary for 
the public — people have to come forward and deposit money to have them surveyed ? — 
A. In some cases that is true, in some it is not ; the money paid should be returned 
after they have obtained their title. 

Q. Is there any difficulty under the present law in selling mineral land unsurveyed? 
— A. Oh, yes ; no unsurveyed mineral lands are sold or patented. 

Q. Cannot that same thing obtain with timber land? — A. Yes, sir; the method em- 
ployed for the mineral lands is this : Here is a piece of mineral land in the Sierra Ne- 
vada Mountains, and there are no surveys within 40 miles. I have a mineral claim 
and I want it surveyed. I apply here to the surveyor-general and make a deposit in 
the sub-treasury, and the first thing is to run a line, a'known survey, measuring the 
distance accurately to this point, and then from that any kind of survey can be made. 
For the timber land I would run the township line and subdivide it regularly. 

Q. Why not survey that claim as you would a mineral claim ? Why not locate that 
point by triangulation, and then survey and subdivide according to the rectangular 
system ? — A. That would do. 

Q. What would you do when you got along with the rectangular survey? — A. I 
would connect it and make it a part of the public survey, but I certainly would reduce 
the lands to private ownership as soon as possible ; give people the opportunity to buy 
the land and they will take care of it and preserve it. The movement must come from 
somebody authorized by the government. It will hot come from the people ; they 
want the timber without paying for it. It must come from the surveyor-general or 
somebody else whose business it is to see that these lands are surveyed. There is no 
difficulty about this, for the surveys are extended in the vicinity, and they can find 
the corners or township lines somewhere without very much difficulty ; practically 
there would not be much difficulty. The deputy surveyors are not sufficiently well 
paid, and they cannot afford under present rnaces to do the work as it should be done. 
There were some surveys in this country that when they were joined were very much 
out of the way. It is all settled now because they have connected them, and, of course, 
in surveying nothing is an error that is known to be an error if you know how much 
the error is. 

Q. 1 understand that your idea for protecting the timber lands would be private 
entry without restriction in the Sierra Nevadas ? — A. Yes. 

Q. Do you make any distinction in other places ? — A. Yes; that law would not apply 
in other States. 

Q. Why not in the Eastern States? — A. If I could enter at private entry chestnut 
and black walnut in the Eastern States, I would consider it a very valuable invest- 
ment to keep for my children. In the Sierra Nevadas it takes so much capital to locate 
a saw-mill and obtain means of transportation to the market that there would be no 
danger of monopolists, and the timber lauds, if they were thrown open to private 
entry, would not be seized upon by monopolists. That is my idea. 

Q. What effect would this unlimited sale of timber land have upon 1<he development 
of the mineral portions of the country ? — A. It would not have any effect. 

Q. Are nob the mining camps generally among the timber? — A. No, sir; very ex- 
ceptionally. 

( t ). Bow is it with Virginia City ?— A. Virginia City is not in a timber locality. 

Q. How far is it from the timber?— A. Fifteen or twenty miles. 

Q. How is it at Bodie?— A. I think Bodie is from 15 to 20 miles from the timber. 
Let me state lure, so that yon can have a fair understanding about that. At one time 
in the history of the world there was a series of rivers running almost parallel to the 
livers that now ilow from the Sierra Nevadas. At that time these ravines that we see 
were not cutout. Probably glacial action wore off those stones and carried them 
down. The glaciers cut out these ravines, and the gold that was in the quartz among 



PUBLIC LANDS. 167 

these rocks was deposited in the ancient rivers that made these ancient river beds. 
Afterward when the volcanoes, when the whole Sierra Nevadas were almost a volcano, 
the basalt or lava was thrown up, and occupies the summits of the mountains, and the 
river-beds were covered up. Then after that came the present condition or age of the 
world, when I think there was more rain and snow on the Sierra Nevadas than there 
is now, when these present ravines and canons were cut oat, leaving our present 
rivers. Wherever they cut across or came in contact with these ancient rivers, of 
course they cut them out, and the gravel and sand was t washed into the present beds. 
Thus were formed the benches and bars of our lower streams, and wherever they were 
not cut out they made what is called placers. Thus our hydraulic mines are a long 
distance below the summit of the Sierra Nevadas. There are no mines at the sum- 
mit of the Sierra Nevadas, except at Meadow Lake, where there are some rebellious 
ores for the presence of which no explanation has been found, that is so far as I know, 
escept perhaps the Reese mine up above Downeyville, and which is the only mine I 
know of at the summit. At other points where the granite crops out at the summit of 
the Sierra Nevadas there appears to be no ore. The mines are all below. The placer 
mines were made by these rivers cutting through the ancient river channels and wash- 
ing them down and depositing their sands and gravels to make the benches and bars 
of the present streams. Up to the summit of the Sierra Nevadas, where the timber 
commences, there are practically no mines and never have been. That will explain 
away the danger you spoke of, 

I might add that the Reese mine is very rich. This group of mines at Meadow 
Lake are at the summit of the Sierra Nevadas, but I know of no others on the summit. 
There would be really no practical interference, except in rare cases, in the sale of the 
real timber lands of the Sierra Nevadas without the mining interest — that is, in that 
immediate neighborhood. It is settled for mines lower down. 

Q. Would it be any harm to insert in a grant for timber land a clause reserving the 
mineral rights ? — A. No ; I think not. 

Q. Would it be an advantage ? — A. I think it would be an advantage, except that 
it encumbers a man's title, which is a disadvantage. I think, on the whole, that action 
would make an immense deal of litigation in this State. It throws titles into con- 
fusion. Wherever you give a man anything but a clean absolute title you injure him ; 
you embarrass him ; you trouble him to sell the land, and you leave him uneasy, be- 
cause he is subjected to every wandering devil who wants to dig into his ground and 
see if something is not there. But here is a clause that any ditch company can come 
in and put a ditch upon that land. That is wrong. That "is all wrong. Those min- 
eral clauses have prevented the settlement of thousands of people in our foot-hills 
who would have come in and planted orchards and vineyards. 

Q. Would it be a disadvantage to divorce the timber and mineral interests and sub- 
terranean rights ? — A. Inasmuch as the only object of persons who would enter timber 
in the timber lands of the Sierra Nevadas at private entry would be to use them for 
saw-mills, such people would have little interest in the land after the timber had been 
removed ; therefore to make a clause in his patent which would reserve any minerals, 
if any such should be found therein, would not be a serious disadvantage to him. 

Q. Would such a clause as that be advantageous in permitting prospecting and 
discovery? — A. I hardly think it would. Minerals have only been found in excep- 
tional cases among the timber lands of the Sierra Nevadas. The discoveries made would 
not be made in such lands, except in rare instances. Very few mines have been 
found among the real timber lands of the Sierra Nevadas. Practically the timber 
line is as low as 2,000 feet in the Sierra Nevadas. The timber line in Shasta will come 
down lower. We find the same timber growing at lower elevation on the hills in 
other parts. Trees in the vicinity of Shasta, yellow pines for instance, will grow at 
the elevation of 500 feet. At Tehachepa we do not find them at 4,000 feet : they fol- 
low the Sierra Nevada on that same slope. As you get south the timber takes a 
higher elevation. I cannot see any objection to that reservation for timber lands. It 
is only when it bears on a poor farmer that you will distress him. I think it would 
be well to couple it with a provision protecting any improvements which he made. In 
other words, when a man goes there and makes a home, give him that home. 

Q. What do you think of the propriety of the withdrawal of large bodies of public 
land in this State for alleged mineral purposes, there being no evidence that they con- 
tain any mineral ? — A. In addition to the lands in the foot-hills of the Sierra Nevadas, 
made mineral by the affidavits of the miners, say from 1850 to 1852, when placer min- 
ing practically ceased on the benches and bars of the rivers — in addition to the land 
made mineral by the affidavits of the miners at that time, Commissioner Drummond, 
by an order, at one fell swoop, reserved from the public domain more than two million 
acres of laud along the base of the Sierra Nevada Mountains, along the foot-hills 
stretching through three degrees of latitude, and having a width of 15 or 20 miles, 
and required that any farmer who settled upon any portion of these reserved lands 
should be at the expense of advertising, of first posting his notice on the forty-acre 
tract, and then by publication in the newspapers fixing the time when he would appear 



168 PUBLIC LANDS. 

at the Land Office with witnesses to show that each 40 acres was more valuable for 
agricultural purposes than for mineral. The expenses and this bother more than 
doubled the cost of the land to the settler, and then, when settled, it was not settled, 
for the patent itself still reserved any mineral, should such be found thereon. All 
mineral rights were reserved. He was still liable to anuoyance and bother from his 
neighbors or any person who disliked him. He was bothered because his land was so 
open to invasion that it was difficult for him to raise money upon it, and the fact has 
been that this withdrawal has probably prevented the settlement of from 2,000 to 
5,000 families on one of the most valuable sections of the State, which is left in part 
for the use of cattle and sheep men, who are interested in keeping the mineral decis- 
ion hanging over it to exclude settlers from it, and thus it pays no taxes to the State 
or county. It is used only for grazing purposes and by the few people who cut the 
oak wood that grows upon it. 

What should be done is this : There were some placer mines among these lands thus 
reserved, principally upon the benches and bars of river courses, but very little any- 
where else. They were practically worked out before the Chinamen took hold of them 
in 1868, but still the reservation is on this land, the climate of which is better than in 
the valleys, and upon which oranges and semi-tropical fruits can be grown and which 
will produce the best berries and fruits in the State. It is also a productive and val- 
uable land for wheat. It is almost practically unsettled, growing out of the difficulty 
of obtaining a title and the uncertainty of the title after it is acquired. The whole 
effect of this thing is that it is injurious to the State, and the order, in the interest of 
the public, ought to be revoked, and the burden of proof should not be upon the farmer 
but upon the miner to show that.it is mineral, if he finds a mine there. That order is 
used for the purpose of keeping large herds of sheep and cattle grazing over the land 
without paying anybody for the privilege ; and the herders and stockmen make it so 
expensive to the agricultural applicant that he abandons his application. After he 
has been to all this expense of making proof he gets nothing, for the mineral is still 
reserved if any is found on his land. When a man gets a title to a piece of land, puts 
on his vineyard, his apple trees, and his home, and digs his well, give it to him clean ; do 
not take it from him afterwards ; do not leave him open to wandering prospectors, who 
can come into his orchard and hunt for a mine that has no existence whatever. If 
there is any mine there let it be his. 

Q. In your opinion, should not the government, when it surveys a township, return 
it properly classified, and thereafter adhere to that classification? — A. No, I would 
not do that; but when a man obtains a title to it let it be his undisturbed. They 
cannot well do that, because if your surveyor, in surveying that land, saw a man dig- 
ging for gold upon it he would classify it as mineral and return it as such. In two 
years afterwards every particle of gold might be worked out, and when it was worked 
out the land would cease to be mineral and that*character should no longer attach to 
it. I sent to the Secretary of the Interior oranges raised on land that was classified 
as mineral land, but from which the mineral had been exhausted. These reservations 
of mineral land admit of the most miserable system of living by men who live on it 
and cannot get any title to it, and they just grub along. They are not like men who 
own the land; they don't pay any taxes, except upon' their possessions, because the 
government owns this land. The fact of the matter was that the department at Wash- 
ington did not originally understand the condition of the mineral lands and what part 
of the mineral belts were valuable, and in a fright reserved everything, and thus tied 
up all the land in favor of the mineral which has been gone for years. If a scientific 
classification were made in the future, I think the government ought to adhere to that 
classification ; but I do not think a clean title to the land should ever be disturbed. 
If a man purchased it for agricultural purposes he should own it, and everything in it 
should be his, clean. 

Q. What and where are the lands that are valuable for grazing purposes exclusively 
in California ? — A. I would call all the lands in the southern portion of the State be- 
low the timber line on the hills, and the mesa lands above the plaius, and the lands of 
the valley3 where the valleys do not receivo to exceed an average of 8 inches of rain- 
fall, grazing lands. Then, further, I would call grazing lands all of the lands in the 
valleys where there is not sufficient water in the rivers that can be taken out for pur- 
poses of irrigation — below the timber line of the hills, in fact. Now, wherever in the 
southern parts of the State the waters of the streams can be directed on to the mesa 
lands, or on all the valley lands, so far as that water extended and can be spread over 
the land it would cease to be grazing land ; but the very lino above which the water 
cannot reach would be the line of grazing land, until you get up to the timber line. 
So you see that I consider that grazing land consists of the various classes of land 
that are fit for grazing and nothing else — not from the quality of the soil, but simply 
from the want of water. The soil may be entirely fit for agriculture. Where the 
snow-water fails to produce enough grass in the spring and the winter rains are not 
sufficient for irrigation, these would be grazing lands, until you got up higher in the 



PUBLIC LANDS. 169 

mountains where there is an increase of rainfall due to elevation — there would com- 
mence the timber lands. 

Q. What can be done to make pastoral lands, as we have defined them, available 
to actual settlers as pastoral homesteads ? — A. They should be surveyed in tracts, 
having regard to the springs and small streams that may be found upon them, and 
sold in large bodies, the whole thing having relation to the water for the use of 
the stock that may be found upon any portion of them. For illustration, take the 
State of Nevada, which contains the largest bodies of this land. The bunch-grass 
that grows on the hills is very nutritious and bears an abundance of oily seeds, 
which fatten all kinds of stock ; but those hills only have a value for grazing pur- 
poses when there is enough water to supply stock. When the water cannot be found 
within reasonable distance of the stock, to which they can travel back and forth 
morning and evening, they have no value, for the reason that stock cannot be grazed 
over them for want of water. They are then left in a state of nature, to be sold by 
the government. Pasturage land should be subdivided in large tracts with refer- 
ence to the water, so that each tract may, as nearly as practicable, be endowed with 
a suitable proportion of water, and then sold at private entry. 

Q. On account of the scarcity of water at times, would it not be well to resurvey a 
certain amount of water and irrigable land, so that the pasturage men could have 
little gardens and a little feed for themselves and stock; that is, the pasturage 
farm to include a large amount of pasturage land and a little land fit for cultiva- 
tion ? — A. That is the Mormon system, and it seems to work very well with them. My 
opinion is this, that so far as it is available that land should be got into condition for 
cultivation by some common ownership. Take Walker River here : I would first get 
the land in a position so that it could be bought if practicable. Large tracts could be 
irrigated, by the water from the river which could not be irrigated if you prohibited a 
man from obtaining title to more than 160 acres. No man or company would expend 
$15 or $20 per acre on such small tracts. I would get 1hat land in position, so that it 
could be acquired in quantities sufficient to warrant capitalists in putting in dams and 
digging irrigating ditches, so as to enable them to reclaim it and sell it in small tracts, 
properly supplied with water, to act aal settlers, and that should be the first object. 
Whenever you get a man attached to the soil by that process, then you settle up 1 he 
country and create at once towns and settlements, churches and schools, and advance 
the interests of the whole community. Then, as regards the land that lies back of 
them, fit forpasturage only, I would provide that at convenient distances from the river, 
say three-fifths of a mile, or whatever might be thought best, the water remaining 
in that river or in those ditches should be opened by law to the back pasturage coun- 
try, and it should be given to all the people along the banks of that river for the pur- 
pose of watering their stock, and by that method the irrigable land could be utilized 
and the pasturage land utilized, for the men who owned the stock should have an in- 
defeasible right to get their stock to that water. I would not provide that pasturage 
men should own the steppe back of the river, but I would provide that the farmer 
should own it all. At the same time I would give the right to the pasturage men to 
use the water for their stock. 

Q. What amount of pasturage land would be equivalent to 160 acres of arable land ? — 
A. I cannot state at all. I have seen in the Mohave Desert large bodies of 640 acres, 
afiluree covering the whole ground, and I have seen it the next season without a single 
spear of anything that looked like vegetation. It would support immense flocks of 
sheep in one season and would not support a rabbit the next ; thus it depends upon the 
nature of the grass. Take the bunch- grass : I have seen lots of land bearing that 
grass that looked so barren that a crow would not light upon it, and yet it would support 
stock all the summer ; it depends upon the native production of the soil. I think there 
Should be — if it is for cattle in the ordinary grazing country — it should be sold in 
tracts of four or five thousand acres ; not less than that ; it is difficult to tell exactly. 
I will state it this way : it should be in such quantities that a man of ordinary 
means who proposes to follow stock-grazing shall be enabled to acquire a sufficient 
amount of land to graze his sheep, and the land should correspond in area with the 
quantity of cattle and sheep that an ordinary average farmer who goes into that busi- 
ness would naturally have. 

Q. What system would you suggest for disposing of the irrigable land that will best 
secure its occupation by actual settlers ; what are the difficulties at present in settling 
this land, and what system would relieve settlers of those difficulties? — A. I do not 
know why the desert-land act, if it were made more liberal, is not a good law. There 
is hardly time enough allowed for persons to complete their work and take out the 
water. Irrigation works in California on the land that does not naturally receive a 
sufficient amount of water by the rainfall is an expensive work of engineering, and then 
of actual labor. Haggin & Carr, of Kern River, have expended in irrigation and dis- 
tributing ditches nearly one and a half millions of dollars. Probably in Kern County, 
near Bakersfield and south of Kern Island, they have expended that much money in 
dams and irrigating ditches, and other large sums have been expended by other par- 



• 



170 PUBLIC LANDS. 

ties in cultivating land, not to exceed half a million acres. These moneys have been 
expended and they have acquired title under the desert-land act to some portions of 
the land, but to other portions of it the title is still inchoate and imperfect, for the 
reason that, while the main ditches are there and some of the main distributing ditches, 
a full compliance with the law has not been made, for the reason that three years have 
expired and the requirements of the law have not been fully met. All that money has 
been expended, yet the detail work has not been entirely completed. In other words, 
there is not time enough given. 

The fact is this : probably $3,000,000 have been expended and the work is only par- 
tially completed ; the details are imperfect, and the government devils then commence 
suits and commence investigations at the instance of anybody who makes an affidavit 
that such and such a piece of land, that he might want, is not desert land ; and it 
costs them a large sum to employ lawyers. Then it is tied up in the departments and 
remains unsettled for a long time. These people have their money invested in those 
improvements and will not get any returns except their alfalfa and some other crops 
they are raising upon it. They are unable to bring in any settlers, as they desire to 
do, for the reason that they are still left in this unsettled condition. It requires large 
capital, and it requires the expenditure of that capital without returns for a number 
of years to reclaim this land. 

The men who go into these operations do not propose to farm the land, but they pro- 
pose to get the land from the government and to expend five or six millions of dollars 
or more in irrigating and bringing water to it, and then they expect to sell it for $15 
or $20 per acre, after a number of years, to people who will cultivate the soil and make 
homes there. Therefore, the law, though well enough in part, must be amended so as 
to make it available. 

Q. What objection is there, if any, to the government reserving every other section 
of this desert land and allowing it to be irrigated in alternate sections ? — A. That would 
not work, because no man would want to spend five dollars per acre to bring water to 
one. section when the government retains the neighboring section for somebody else, 
whose land would then be irrigated without pay. 

Q. As I understand you, the great body of land to be irrigated can be redeemed only 
by the utilization of the large streams, where much capital is required ? — A. That is it. 

Q. What proportion of land can be irrigated by the small streams and by utilizing 
the larger ones, where only capital can do it ? — A. I think very nearly all the small 
streams in the southern portion of the State that can be utilized for irrigation on small 
tracts have been acquired, and are in use and occupation. What remains are the 
large rivers, that can only be utilized by the expenditure of large sums of money. 
My idea is that this land, after the main ditches are taken out, where the main dis- 
tributing ditches are not yet constructed, they, the latter, can be constructed for $4 
or $5 per acre. Tulare Lake, on its eastern side, has a hard clay bottom, and that clay 
bottom extends up toward the foot-hills in the form of hard-pan — how far up toward, 
the foot-hills, 1 cannot tell ; but King's River, Coon Creek, Rockwood Creek, and various 
other streams that flow down from the mountains have brought down sediment and 
leaves and other trash, and made a deposit upon that hard-pan on the shore of Tulare 
Lake about four feet thick. This sand and silt have made up the richest kind of soil, 
and ditches have been taken out of King's River for the irrigation of that soil. 

The slope from the hills to the lands of the Muscle-shell Slough Company is about 
one foot to the mile. An irrigating ditch has been brought across the northern end of 
the section, flowing along the section line, and that water settles through the saud 
and silt and runs toward the lake slowly on that hard-pan, and gives up its moisture 
to vegetation which grows to a distance of a half a mile from the lake. This is the 
most inexpensive irrigation in the world. That condition of things only exists where 
the rivers have brought down deposits which rest upon hard-pan like that; but I do 
not know that such a condition of things exists anywhere else. So, you see, it is hard 
to state what irrigation will cost. 

The great body of irrigable laud now remaining in California is not available for 
poor men. Take the stretch of country between Kern County and Tulare Lake. There 
are probably 250,000 acres of plains land, with occasional patches of alkali ground, 
because where there is not sufficient rainfall the alkali deposits are always found. 
Take that country of 250,000 acres, and it is almost impossible to irrigate it, unless the 
remaining waters of Kern River should be taken out and extended along north of that 
section of country for a distance of, I should say, 40 or 45 miles, and then brought down 
and spread over the ground by ditches. This is the only process by which it can be 
irrigated (unless they can find artesian water), and probably it cannot be done short 
of an expense of three or four millions of dollars, if, indeed, there is sufflcienl water in 
Kern River still unappropriated. Itis nonsense lor a man to take 1(50 acres or 640 acres 
or less of desert laud. The only remaining land available for poor men, then, are the 
pasturage lands which are still left. There is a stretch of country 450 miles long from 
Redding to Tahechepah. If you take off the mineral restriction from that land it 



PUBLIC LANDS. 171 

will be available, for it is some of the best land in the country. It is 450 miles long 
and 20 miles wide. 

Q. Outside of this land there are no other lands', are there, except the grazing lands? 
Now, would there be any objection to extending the homestead privilege to the pas- 
turage lands and make a homestead include a sufficient amount for a pasturage 
farm ? — A. There would. The m an who proposes to go into the grazing business has 
some capital, or else he would not have money to purchase his sheep and cattle. 
That man should be made to buy the land from the government, and cot have it given 
to him. If he has money enough to enter the stock business he has money enough to 
purchase his land. I would have a surveyor to survey it and grade it ; and he should 
be a man ot some intelligence, and he should be required to be more particular in 
reporting the character of each 160 acres, and note all the grasses that are upon it, 
and the streams that are upon it, and all other objects by which a commissioner could 
get a general description of it, which would enable that commissioner or some one 
else properly authorized to grade that land. Then it should be sold in these certain 
tracts, at a price which would be a, low price for the government, for the use of these 
grazing men, instead of giving them homes upon it. 

The surveyor who makes the survey of these pasturage lands should be required to 
give a statement in regard to the character of the soil, and the vegetation that grows 
on it, and, approximately, the water there is, and any other information that might 
occur to him that would be of benefit to a commissioner, in order that he might pass 
upon and grade the value of this land. This value should be fixed by the government 
at the cost of this survey and examination, and then these pasturage lands should be 
sold in convenient tracts of, say, from two to five thousand acres to persons who 
desired to occupy them for pasturage homesteads, at the cost of surveying and 
grading. 

Q. Where should the title or right to the water rest ? Who should own the water ? — 
A. The State should own the water, and the State should regulate and control it. It 
should regulate and control it by a commission that should have an almost absolute 
power to do justice to the parties who take out the water and those who use it finally. 
As we stand now, it is in the next fifty years to be a great source of trouble, strife, 
and bloodshed. The people who use that water will be the slaves of those who hold 
it. This is true to some extent to-day. With a parceling survey there should be a 
physical survey, but with the present manner of surveying it cannot be done with 
sufficient accuracy to make it possible for irrigation. For irrigation contour lines 
and elevations must be computed with the greatest and minutest exactness, and the 
ordinary surveyor is not competent to do that. 

Q. Suppose the land was so classified that the man who obtained title to a certain 
tract of land obtains title to it as irrigable land. Now, having set aside a certain 
amount of the land as irrigable land, should not the water right inhere with the land 
and pass with it? How would that do? — A. That classification cannot be made 
accurate enough. Take the land lying between Kern Eiver and Tulare Lake, above 
Buena Vista. The question of how much of that can be irrigated from Kern Kiver 
depends upon where you put in your dam ; it depends upon a great many other con- 
siderations also. The surveyor may report that all of a given tract of land is irriga- 
ble, and probably it is irrigable, but it will take a million of dollars to irrigate the 
whole of it. He cannot very well classify the land, because he must know where the 
water will reach ; below that point it is irrigable land; above it is pasturage land. It 
is the line of the ditch that makes the distinction, and it is necessarily an engineering 
problem where the dam should be put, and the dam being put there you have next to 
ascertain where the water can be taken to. The question is, can the water be taken 
out here or taken out there, and that question must be left to the State, to be under 
State control. But yet the government must classify the lands as nearly as possible ; 
and then it is absolutely necessary, if they are classified and sold, and it is afterwards 
found that a piece of land that is put in one class turns out to be of another, that 
there should be no tampering with any man's patent, as in the mineral cases ; for when 
he gets his title from the government it should be final and complete. 

The settler should never be bothered with these mineral questions. There should 
not be so many reservations in his patent. When a poor farmer comes to make his 
improvements he often finds there are so many reservations that the title means 
almost nothing. There should be no such condition of things. Whenever the land is 
sold, it should be sold absolutely and clean. 

Q. Would you aid irrigation corporations by giving them each alternate section? — A. 
You cannot do that; this alternate- section business prevents anything being done. 

San Francisco, October 8. 

B. B. Eedding testified as follows : 

The land of the Central Pacific Railroad runs through Nevada, down the Truckee 
Eiver, going east ; then across the sink of the Humboldt and Carson, and into the de- 
pression of country into which these two rivers empty, where their water is then 



172 PUBLIC LANDS. 

evaporated ; then up the line, following the general course of the Humboldt River to 
its source at the Humboldt Wells, and so on into Utah, around the head of Salt Lake 
to Ogden, where it connects with the Union Pacific. The general character of the land 
in the sections above referred to is desert, and like all other deserts is made so by a 
lack of sufficient rainfall. The rainfall is less on that line at Wadsworth and in the 
sink of the Humboldt than elsewhere, not averaging to exceed three and one- fourth to 
four inches annually. It gradually increases, following up the Humboldt River along 
the line of the railroad to Fort Halleck, to the Humboldt Wells, which is the highest 
elevation on the line of the railroad, and which point is the source of the Humboldt 
River. Here the average rainfall is 12 inches. The consequence is that while there 
are good pastoral lands on this line and good natural grasses, and occasionally small 
patches of arable land, there is not in that portion of Nevada much arable land, ex- 
cept by irrigation. There are some natural grasses on the hills, such as the bunch- 
grass, which appears to be fitted by nature to live in an arid and dry region, and which 
produces some considerable nutritious food for stock. Wherever the water of the 
Humboldt has been taken out and distributed on the flat ground on its banks the land 
is found to be very productive. It is only in a small degree utilized for the purpose of 
cultivation, because the putting in of dams and irrigating ditches involves a large 
expenditure of capital. 

The land on each side of the Humhoidt River, w r hich is on the line of the railroad, 
is partially owned by the railroad for 20 miles on each side. The sections belong alter- 
nately to the railroad company and to the government, the odd-numbered sections 
being those owned by the railroad and the even-numbered sections by the government, 
held for the use of settlers. These government lands are now only subject to pre-emp- 
tion in tracts of one hundred and sixty acres. Capitalists are ready to invest large 
amounts of money in taking out the waters of the Humboldt River and carrying it up 
to the edge of the hills and then distributing it down over the flat lands, provided 
they could receive the benefit of their investment, which, as the law now stands, is 
not permitted to them. The railroad would willingly sell the odd-numbered sections 
at the government price of $2.50 per acre, but capitalists are not willing to make this 
investment simply for the land that they could purchase from the railroad company, 
for the reason that the benefit of their investment in the construction of irrigation 
ditches and dams, distributing ditches, &c, would only reside one-half in them. One 
half of it would go to any settler who saw fit to pre-empt 160 acres of this land from 
the government after it had been irrigated. The result is that capital cannot be found 
to make these investments. A further consequence is that this section of the country 
is unsettled and comparatively non-productive, and promises to continue in the same 
condition while the law remains as it is now. The bottom land of the Humboldt River 
susceptible of cultivation varies in width at different points. It would be difficult to 
say how wide it would average, but I should say not to exceed 10 or 15 miles through 
its entire length. Back of these lands are the pasturage lands on the hills, looking 
bare and unproductive, but in fact, year by year, containing variable quantities of 
bunch-grass and other native grasses which are fattening for cattle. These lands can 
never be used while the earth is at its present climatic condition for any other purpose 
than the x>asturage of herds. They now support large herds of cattle, and are really 
divided up among the owners of herds of cattle, who, by common consent, occupy dis- 
tinct sections without any ownership. It is merely conceded that from such a hill to 
such a hill a certain area of grass land shall be under the control of one person, so 
that the most of these pasturage lands are utilized without title from the government. 
The people who graze over them have no desire that there should be any title. 

Now, to make these lands available and settle up this section of country with thrifty 
and industrious farmers and a grazing population, who would utilize the bottom lands 
for agriculture and utilize the lands back on the hills for grazing purposes, requires 
an entire change in the present system of laws controlling and governing these lands; 
but just how this should be done is a question for the consideration of Congress. All 
of these lands might be utilized by several methods, and be a source of revenue to the 
government and add prosperity to the country. If the government were to take back 
the odd-numbered sections throughout this whole strip of country, cause them to be 
surveyed again with reference directly to their facilities for irrigation, and then allow 
them to be sold in large tracts and bodies, so that persons having capital could outer 
them at private entry, irrigation works would be constructed, dams put in the rivers, 
distributing-ditches iuado, and these parties, having the lauds so irrigated, would then 
sell them, with rights to the water, in small tracts to actual settlers, who would soon fill 
them up and cultivate them. If this w^ero not considered advisable, then the govern- 
ment should take from the railroad all the odd-numbered sections on one side of the 
railroad— the land of the railroad lies along the bank of the river— and give the rail- 
road in exchange the even sections on the other side. This would enable the railroad 
company to have all the lands on one side of the river surveyed, with a view to their 
salo to capitalists, who would put in dams and irrigating ditches, and, after irrigating 



PUBLIC LANDS. 173 

them, would resell them to the settlers at a profit, while the settlers would cultivate 
the soil and make it available. 

If this should not be approved, then the one other plan that I see is for the govern- 
ment to take back the odd sections for a distance of ten or twenty miles in alternate 
blocks and give the even sections to the railroad for the same distance, in alternate 
blocks, so that the blocks of land could be got together, which would be susceptible 
as a body to irrigation. Then the government could arrange its portion in any way 
it saw fit, and would probably adopt the same system that the railroad would adopt, 
which would be to see if the several bodies could be irrigated, and then sell them to 
capitalists to take out the water to irrigate them with. 

These are the various plans that have occured to me. The object of any system to 
make these lands available must be to get together every portion that is susceptible 
of one system of irrigation, by a ditch which could be taken out, say on the right 
hand, and. carried to the foot-hills as far as that ditch could be extended. Everything 
below the line of that ditch would create one irrigating district, and the expenditure 
of money in putting in that ditch, so far as the flowing of water into it is concerned, 
would irrigate all the land between the ditch and the river and would constitute what 
would be one block of land susceptible of irrigation at that point. Any system that 
will make these lands available to the railroad must be arranged in that manner. 
Nature has so formed that country that I cannot conceive of any other plan that will 
do it. I want to say that while these lands remain in the condition they are, with 
this divided ownership, nothing can be done, except in a desultory manner, for settlers 
in that country to make it available for agriculture. Men will not invest capital in 
one-half of the lands. They will not invest one hundred thousand dollars' worth of 
capital to bring in water which every man can use by going to the land office and ob- 
taining title to the even-numbered sections. It must be so arranged that capital can 
be induced to bring the water to the land. Any system that will accomplish that will 
accomplish the settlement of that country; but in the condition it is it must remain 
a desert that cannot induce settlement there, because it costs too much to get out the 
water. 

It is no use to go into the history of our form of government ; but one of the ends for 
which this government was created was to get rid of primogeniture and entail. That 
fear of large holdings, growing out of the existing faults in the old country, has been one 
of the dreads that has worked into the public mind everywhere. I think there is no such 
danger in this country, for the reason that these wealthy men must die after thirty 
years, and cannot leave their property entailed. It is div-ided up, and when the first 
heirs die the same condition of affairs takes place. I have known a man who died here 
— one of the wealthiest men in the State, who died four or five years ago — and now his 
estate is all scattered; and within about thirty years from this time those holding this 
estate will die, and it will be redivicled again. In that way the men that got hold of large 
grants in early days were all men of middle age, and generally men who came here in 1849 
with some capital and some experience. They saw the State was filling up with pop- 
ulation, and instead of going to mining they got hold of the Spanish ranches. Most of 
these owners are now men long past middle-age of life, and they are dying, and their es- 
tates are being divided. Another generation will see all these estates divided up ; and 
in two generations they will all be in small tracts and farmed. That prevailing fear in 
the country where there is no primogeniture and entail is a fear that, to my mind, in 
another generation will have so worked itself out that it will have disappeared. 

Now then, to come back to this other question : suppose there are 30,000 acres in a body 
that can be irrigated through these ditches, and that it will cost $100,000 to bring out the 
water, or $200,000 to bring out that water to irrigate that laud, and that capitalists who 
invest in that operation did it not for the purpose of farming that land. They cannot 
farm it. Farming has never succeeded in large tracts. I don't know of ten meu in the 
State who at the en*l of fifteen years have not made an absolute failure of farming over 
a few thousand acres. They do not invest in these ditches and these irrigation works 
and in these lands with the object of getting an estate to leave to their children. Capi - 
tal is too active here. Their object is to invest their money, having an absolute securit y 
in the land, knowing that it is not the land but the water that gives the land a value. 
Then their object after the work is done is to sell that land in small tracts, at a profit, 
to people who will cultivate it. I do not know of one claim of irrigation on irrigable 
lands in this State, made under the ''desert-iaud act," where the object of the parties 
investing their money was for the purpose of farming that land. Immediately after the 
water was put on the land they commenced searching for people who would settle on it 
and buy it of them at a profit, to remunerate them for their outlay of capital. 

I want to add again, that if these lands are taken back by the government and these 
irrigation districts formed, the government should provide in a law that there should 
be certain distinct lines and roads by which people having their stock in the hills be- 
yond irrigable land should have opportunity for their stock to get to the water of that 
river, and that should be common and free. That is absolutely necessary to them, 
otherwise pasturage lands cannot be sold. If a man owned an irrigable tract and had a 



174 PUBLIC LANDS. 

right to shut out these ditches from the pasturage lauds on the hills, those lands could 
never be sold, because there is no water, and the stock must have an opportunity to go 
to the water. 

Question. Has the tendency been, in the last few years, to increase the size of the 
herds and diminish the number of owners, or has the tendency been the other way ? — 
Answer. The condition of things is this : Before the Americans came to this country it 
was settled by Mexicans. They were a nomadic, pastoral people, and their only object 
was to feed large herds of cattle. Their government made them concessions of lands 
for that purpose in large tracts. The most nutritious grasses grow, of course, on the low 
bottom lands, and keep green the longest in summer; and the Spanish and Mexican 
grants naturally covered these portions of the land, and theirs was the best land in the 
State. After the Americans obtained possession of the country they naturally sought 
these lands and purchased them. As a rule they have turned out to be the best farm- 
ing lands. The Spanish grants took the best farming lands in the State. When it was 
ascertained that California was a wheat-growing country these lands immediately ac- 
quired too much value for grazing purposes ; they were worth more for wheat than for 
grazing purposes or for orchards. As a consequence these large herds of cattle have 
disappeared, and the parties who were in that kind of business moved away and went 
to less productive lands, and we have ceased to be a pastoral people. The only pastoral 
portion of the State now is in some of the southern counties, some little on the plains of 
the south in the Tulare Valley ; but it is gradually working from the State over into 
Nevada, Utah, Idaho, Montana, and Southern Oregon. We have ceased to be a pastoral 
people. Sheep are still owned in large numbers — vast bands — but we have ceased to 
be a beef -raising people. We still, however, produce immense quantities of wool, and 
sheep are owned in vast bands all through the State. They are fed in the winter on 
the dry plains ; in the early spring, with the annual grasses, they are driven into the 
mountains wherever there are any green spots from the Oregon line to the Gulf of Cali- 
fornia. . Everything that contains any moisture they eat. The snow of the mountains 
remains until it gradually melts in the spring, causing it to fall upon the thick under- 
brush composed of various kinds of Ccenanthus, which was the natural feed of the deer, 
and this band of sheep eat all of that and leave the ground bare. The consequence is 
that snows do not remain so late in summer, and for that reason our rivers are becom- 
ing more torrential in consequence of the vast herds of sheep that are grazing in our 
mountains. The raising of cattle and horses in herds has ceased, and that business is 
being conducted in those pasturage lands in Nevada. The sheep are also extending. 
The State has probably to-day almost as many sheep as can be grazed. 

Now, there is another enterprise springing up. Wherever on the bottom lands al- 
falfa can be sown and the land can be irrigated, it is so vastly productive that four 
crops on an average can be cut every year, so that in a small way the farmers are com- 
mencing to raise cattle at home — as many as their land will support — and instead of 
owning a vast range with wild cattle, each farmer now has a herd of ten to fifteen. 
This adds largely to the supply of beef in this State. In other words, we are grad- 
ually changing from a pastoral people and becoming a cereal-growing people. In an- 
other twenty years we will be more strictly an agricultural people, because there will 
be markets in the towns and cities of the State for agricultural products. 

I should like to say a word on the debris question. A great deal of valuable farming 
land is being destroyed in Sacramento Valley and along the river bottom by the rivers that 
flow down from the Sierra Nevada Mountains, where there is hydraulic mining. Some 
of the ancient river beds created in a former geological era contain large quantities of 
gravel from which the gold can only be extracted by turning* upon these beds large 
bodies of water under a heavy pressure due to the elevation of artificial streams brought 
in for the purpose. These, in the course of a season, remove an almost incalculable 
amount of earth, which is washed into the streams and carried down by the Hoods and 
deposited over these bottom lands, destroying for the present their agricultural proper- 
ties. This is not the only source of injury, for the reason that as cultivation has ex- 
tended into the foot-hills, mostly where the land is plowed in the winter time, and 
wherever the earth is broken up by the plow the rains make small brooklets, which run 
into the valley, and from that into little rills, and from that again into the rivers, car- 
rying an immense amount of earth, which also adds to the quantity brought down 
by the hydraulic mines. This becomes a very serious question in certain portions of 
the State. In relation to the legal rights of hydraulic miners, and also as to the legal 
rights of the farmers whose lands are being destroyed, these questions are now before 
the courts for determination. 

An examination of the maps of the State, in connection especially with those rivers 
on which there are hydraulic mines, will show, 1 think, that in every instance there is 
provided a place for the deposit of this sediment and earth, so that for a great many 
years, probably twenty-five or thirty, by which time hydraulic mining will probably 
cease, all the earth and sediment brought down by these rivers during the hydraulic 
mining can be deposited, and made to create valuable lands without injury to any 
farms at present in existence, and without injury to beds of the rivers. I will illus- 



PUBLIC LANDS. 175 

trate : Right north of the city of Sacramento, north of American River, which flows 
by Sacramento, and east of the Sacramento River, there is a tract of swamp or over- 
flowed land of about 100,000 acres known as the Swamp Land District No. 1, in the 
swamp land segregation of the surveys of the State. A large amount of money has 
been expended in attempts to reclaim this tract of land, but without success. For- 
merly, before hydraulic mining commenced, the lowest portion of this basin was at 
about the same level as the bed of the Sacramento River. Since hydraulic mining 
has been in vogue the bed of the Sacramento River has been raised until it is now 
some distance above the level of the land in this basin. Formerly the Sacramento 
River, in the flood period, flowed through sloughs into this basin which became a vast 
reservoir, and in which it may be said the Sacramento stored some of its water. When 
the river fell this basin poured out these waters through these same sloughs into the 
Sacramento and helped to keep the Sacramento in the summer time at its average ele- 
vation. Late in the season all these ^reservoirs would pour out through these sloughs, 
and these tracts of land would become dry, or nearly so. Since the elevation of the 
bed of the river it has converted 100,000 acres into tule land below the present bed of 
the Sacramento River, because the waters from the basin can't run baGk into the river, 
the consequence of which is that it remains there, only a portion of it evaporating. 
This tract of land has in consequence never had any value, and is utterly useless, 
except a small portion of it used late in the season for grazing purposes. 

This tract of 100,000 acres of irreclaimable tule land, valuable only for grazing a 
short period in the autumn, lies a short distance from the Bear River, on the banks of 
which the greatest destruction by hydraulic mining has been committed. It is almost 
a level plain for ten or fifteen miles from the banks of Bear River to the nearest part 
of this tract of tule land. If a canal were dug from a point on the Bear River across 
this plain to the head of this body of tule land, and a dam put in at Bear River, all 
the water of that river with this sediment could be turned through this canal into 
this basin, and it would become for a time a stationary body of water, from which the 
sediment would settle upon the bottom, and then gradually overflow as the volume of 
water coming in increased, and pass out through the sloughs I have spoken of into 
the Sacramento River. Judging only from the deposit that has been made in the rivers 
by hydraulic mining during the past fifteen years, I would make a rough estimate and 
say that this body of tule land would contain all the debris that by any possibility 
could be sent down the Bear River during the next twenty-five or thirty years, by 
which time hydraulic mining will have ceased. 

The next largest injury done by hydraulic mining has been on the Yuba and on the 
Feather Rivers. On the banks of these two rivers is also provided a depositing ground 
for the sediment brought down by their water. East of the Sacramento and north of 
the Feather River is another body of swamp and overflowed land which at a rough 
estimate I should say contained between 200,000 and 300,000 acres. I have forgotten 
its number, but it is generally known as Park's Reclamation District. A vast sum of 
money has been spent in trying to reclaim this district of land, but without success. 
By a short canal a very few. miles in length, perhaps not to exceed five miles, the 
waters of the Feather and Yuba divers, at the time of the year when the deposits 
come down, could be turned into this basin, where their sediment would be allowed to 
deposit, and then flow out through sloughs into the Sacramento. 

On every other river, so far as I have examined the map of California— and I have 
examined it carefully for the purpose — near every river on which there are hydraulic 
mines, there is, down below the foot-hills on the plain near the banks of that river, a 
tract Of swamp and overflowed land into which this sediment could be turned. These 
lands are now entirely useless except for grazing purposes. The effect of depositing 
these sediments there, in the creation of new and valuable land, would only demon- 
strate itself after a series of years when that sediment had been allowed to settle there 
and deposit so long that it had filled up the swamp at the height to which water comes 
down in flood-time. Then, by keeping the water away from it for a period of years, 
it would reclaim itself and become, in my opiuion, as valuable as the lands at the 
mouth of the Sacramento and San Joaquin Rivers, which are now the most valuable 
lands in the State and the most productive, and which, in my opinion, were made by 
the same processes of nature ages ago ; that is, by the depositing of the silt that 
came down and was compelled to drop by the water meeting with the brackish tide- 
water where it comes in from the ocean. 

These lands, now worthless except as I have stated for grazing during a few months 
of the year, would then become as rich, moist, bottom lands as there are in the State. 
Nothing but an examination by engineers of the amount of earth settlings at the' river 
by hydraulic mining, and an exact comparison of the areas of these basins acd calcu- 
lations of the amount of sediment which is sent down each year, would determine how 
many years it would take before these basins could be filled up to make valuable land ; 
but this is certain, that there are none of these rivers on which there is hydraulic 
mining that, near their outlet from the hills, have not basins into which their depos- 
its can be carried to settle and be made fertile land. This -problem can be demon- 



176 . PUBLIC LANDS. 

strated in this manner: The Cherokee Spring Valley Water and Mining Company with 
other mining companies in Butte County mined for some years before the lands on 
Table Mountain Creek and Butte Creek were occupied by farmers, until the construc- 
tion of the California and Oregon Railroad. The distance was so great from the set- 
tled region of the country that, although these lauds were very good, wheat could not 
be produced with profit on account of the long distance from a market. 

This tract of country lies between the Marysville Buttes and Chico. It is now 
crossed by the California and Oregon Railroad. Directly the railroad was constructed 
farmers bought lands from the railroad company lying along the borders of this Butte 
Creek and Table Mountain Creek. Others pre-empted the even-numbered sections 
from the government. At the point I speak of where the railroad crosses Butte Creek 
it is probably fifteen or twenty miles from where that creek emerges from the foot- 
hills on to the plain. These mining companies had been in the habit of sending their 
water and debris through Butte Creek and after it reached level lands or plains the sedi- 
ment was deposited, and in time Butte Creek filled up and this water with the sedi- 
ment flowed righfr and left anywhere on the plains. The farmers who bought land 
from the railroad and those who pre-empted from the government made complaint that 
they were unsafe in the cultivation of the land there, for the reason that they were li- 
able at any time without warning to have this creek with its sand make a turn in a 
new direction and overflow their crops. Suits were threatened to be commenced ; the 
railroad company ceased selling any more land in this vicinity, because people were 
afraid to purchase it. The government also ceased to permit any more land to be pre- 
empted for the same reason. The owners of this mining company determined if possible 
to obtain possession of this land, and first ascertained what the odd-numbered unsold 
lands on that creek could be purchased for from the railroad company. In consequence of 
the inability of the railroad company to sell it the price had been reduced, and having 
obtained the price, the owners of the mining property visited the several farmers who 
were supposed to be in process of injury and engaged with them for their land, and 
having purchased the land from the farmers, they came and purchased the railroad 
odd sections, and this having been done, they then built levees on each side of Butte 
Creek, probably about a mile or a mile and a half from each side of the creek — I can't 
state the distance exactly. Then they put dams across the lower end, and having done 
this they allowed the debris to flow into it until it filled up and settled upon those lauds, 
and allowed the clean water to flow off. After two or three years they made what had 
been adobe or stiff clay soil into a sandy loam by this deposit. They then put levees 
further down on the banks of Butte Creek and did the same thing in the sections be- 
low, and through these lands that had been thus made they made a canal through the 
center and constructed levees so as to prevent any more overflow of fche land which 
had been thus created, and going on below they did the same thing and turned the 
debris into another poor section. And this land thus created takes care of the debris, 
which in turn forms valuable land which they sell for a very large profit and avoided 
lawsuits with the farmers by taking care of all the debris so that they will be no more 
troubled there by the debris while hydraulic mining lasts. Now I think the same op- 
erations can be performed on a larger scale in the " swamp-land district. No. 1," and in 
this " Park's district," the number of which I have forgotten, at the junction of the 
Feather and Sacramento Rivers, so that all the debris from the mines as long as hy- 
draulic mining exists can all be deposited there and tend to the creation of new and 
valuable farming lands. The only question is who is to pay for this. A number of 
owners of swamp land in swamp-land district No. 1, that is this body of swamp land 
north of Sacramento, have stated publicly that they will be thankful if the dSbris 
from Bear River can be turned into that district as a money speculation ; that for them 
it would be safe to hold that laud for the filling up of the country by this debris above 
the floods so that it can be utilized for farming purposes. I do not doubt but that the 
owners of this Park's district would also bo glad to have it done. It is done generally 
in other countries, and I think it has been done in England, where it is called " warp- 
ing." 

MEMORANDUM FOR LAND COMMISSION, BY MR. B. B. REDDING. 

So far as the elevated region — the ridge or et bulge" of the continent lying between 
the one hundredth degree of west longitude aud the Sierra Nevada range of mount- 
ains— is concerned, it is, by its physical characteristics, so widely different from the 
territory to the east of it, as to require a distinctive, separate treatment. With an 
altitude averaging between 3,500 to 4,000 feet abovo sea level, it is subject to early 
and late frosts, with generally a scarcity of precipitation of moisture, and, for the 
most part, not susceptible of irrigation, and is un suited to field culture and subdivision 
into arable farms. Nevertheless it is not wholly valueless. Portions of it abound in 
precious metals, other portions in coal deposits, on a small portion of it timber may 
be had, and a very considerable area may be devoted to grazing purposes. In uast 
times this region has sustained vast herds of the native bison and antelope ; and expe- 
rience shows it is capable of supporting equally vast herds of our improved varieties 



PUBLIC LANDS. 177 

of cattle and sheep — sufficient indeed to supply the population of the United States 
with flesh meats if properly managed. Though worth "but little per acre, these lands 
are still worth something for these purposes in connection with the available water 
supply, and as there are millions of acres the aggregate value is by no means insig- 
nificant. 

As has been repeatedly shown, a tract of forty, eighty, or one hundred and sixty 
acres of this land, taken at random, is of no use on these apparently sterile plains for 
either grazing or irrigation. The lands are dependent on their proximity to a supply 
of water : therefore the small tracts bordering upon the unfailing streams and springs 
have a value which, if detached from the surrounding tract, deprives a much larger 
area of all value. Especially is this true if the land is parceled out into townships 
and square-mile sections and the subdivisions thereof. The practice has been to ad- 
just these rectangular surveys to the conformation of the country by surveying in this 
zigzag fashion the sections occupying the watered valleys for sale or occupation, and 
leaving the more unprofitable hillsides as not being wanted. Meantime the herds 
roam over the whole area of public lands. In this way the coveted pieces or squares 
containing water have been and are being sold away from the United States into pri- 
vate hands, leaving the unsold portions valueless to any other than the purchasers of 
the water. Homesteads sold or granted in this manner are likely to be a serious loss 
to the country. 

Obviously it will be necessary to abandon the present system of connected rectan- 
gular surveys by meridianal base lines. The design of its authors undoubtedly was 
its symmetry and simplicity when applied to the level alluvial lands east of the Mis- 
souri. The symmetry cannot be preserved, even if it were worth the cost, for the 
continuity is broken by the presence of large tracts of French and Spanish grants, 
Indian reservations, and the like. Moreover, the sixteen or more standard points of 
departure will not, if prolonged to a union, make a perfect and symmetrical junction. 
So far as the simplicity is concerned, the records of the Interior Department afford 
abundant evidence that the confusion and mistakes could hardly be greater if the 
surveys were run from landmark to landmark by compass, according to immemorial 
usage, in most countries by metes and bounds. The rectangular surveys may be per- 
haps retained with advantage in places where they have prevailed and the greater 
part of the lands disposed of under it, or where the formation of the surface favors it, 
but to carry this network of perfect squares over the great plains west of the one 
hundredth meridian and over the mountainous regions beyond would be a manifest 
waste of public money from which no corresponding advantage would follow. 

Congress has also heretofore seen proper to authorize a departure from this method 
of survey on account of physical peculiarities in the States of California and Nevada, 
as will be seen by reference to sections 2408, 2409, and 2410 of the Revised Statutes. 
There is no good reason why this discretion should be limited to those States ; but it 
might with equal reason be applied to the whole of this " dry half " of the country, as 
it may be called, and made obligatory by statute instead of discretionary with the 
Secretary. 

We are met in the outset with the patent fact that Congress, in pursuance of the 
policy of opening up means of communication through the public lands with a view 
to strengthening the arm of the government and opening the lands to public occupa- 
tion, has granted alternate sections of public lands (the odd-numbered) to railroad 
companies, and although the value of the reserved sections has been increased so as to 
be worth more with the roads constructed than the whole was before, the exhaustion 
of the best lands, no less than the concurrence of public sentiment, dictates that there 
should be a stop to this policy. A change in the system of surveys would require, at 
any rate, a change in the terms of such grants, as they should not be made as hereto- 
fore, in alternating sections, if there were no such sections designated. The better 
policy would be to make no further grants to corporations by way of aid, and to re- 
cover all grants already made, as fast as the forfeitures occur at least, and perhaps 
also to recover on terms of equity such other valuable tracts as have been granted or 
sold away to the prejudice of the public estates. It will be seen that the vast terri- 
tory west of the Missouri and one hundredth parallel is severed into irregular belts 
from east to west by grants to four railroads to the Pacific— the Northern Pacific Kail- 
road Company, the Union and Central Pacific Company, the Atlantic and Pacific Rail- 
road Company, and the Texas Pacific Railroad Company. It is true that by the terms of 
the grant the lands of two of these companies are liable to restoration to the public 
domain for the unbuilt portions, the time for completion of the Atlantic and Northern 
Pacific roads having expired, and it will require some renewal of the grant by Con- 
gress to prevent that result. As to the other, the Texas Pacific, less than two and a 
half years remain in which to construct the road across the Territories, and as its east- 
ern terminus is still more than 600 miles distant from the Rio Grande, it is probable 
this grant will fall into the same state of suspense and liability to forfeiture as the 
others. In the event that Congress shall determine to make no further grants of pub- 
lic lands to railroad companies, and not to renew any of those which have lapsed, 
12 LC 



178 PUBLIC LANDS. 

there will be no difficulty in dealing with these several grants of 60 and 80 miles in 
width and 800 to 1,200 miles long, as if they were still integral portions of the public 
domain. 

In the case of the grant to the original Pacific Railroad constructed by the Union 
Pacific and Central Pacific Railroad Companies the Case is different, but by no means 
intractable. These lands have been earned by the building of the road, and the com- 
panies have an indefeasible, though inchoate, title to the odd-numbered sections along 
a forty-mile belt from the Missouri River to the Pacific Ocean, of which they cannot 
be divested without their consent. Fortunately, in this ease, it is as much for the in^ 
terest of the railroad companies as for the government to desire a change in the sys- 
tem of survey and disposal. Neither party can make the present system work to their 
advantage, and it appears that they actually stand in the way of each other in the 
matter of land transfers, the advantage, if any, being on the side of the companies, 
while the disadvantage is reflected upon the intending settlers and the local indus- 
try. This question has been fully set forth by the government "directors and by the 
land agents of the companies. 

It is obvious that it would be better to do away with this paralysis of ownership in 
these lands by placing the whole body of the public domain under one control, and as 
soon as practicable under the ownership of either the government or private settlers. 
Various plans have been suggested to do away with the present anomalous relation. 
The Secretary of the Interior has suggested that instead of the present alternate sec- 
tions interspersed among an equal quantity of government sections on each side of the 
roads, the companies should take the solid strip of odd and even sections on one side 
of the road and the government the solid strip on the other side. This does not, how- 
ever, wholly get rid of the difficulty, so far as the government policy is concerned ; in 
fact, it leaves the question but little better than before, since it still would be neces- 
sary to run the lines by rectangular sections at the two edges and center of this forty- 
mile belt, which now virtually bisects the public domain, and would not adapt the 
shape of the tracts to the practical uses they are fit for. 

The government directors of the Union Pacific Railroad Company in their annual 
report for the year 1877 discussed the question at length, and recommend a system of 
joint leases for long periods. Leasehold property, besides entailing greater complica- 
tions than our present system of freehold tenure, is contrary to the genius of our in- 
stitutions, and would tend to perpetuate the control of the railroad corporations over 
vast bodies of land adjacent to their roads, which the granting acts and sound public 
policy would reject as undesirable and not contemplated. Neither of these proposi- 
tions, in our judgment, goes far enough, though either of them would be an improve- 
ment on the present plan, and if the cardinal distinction of the technical " section " 
of our surveys is to be maintained, one of them may be chosen. The present owner- 
ship is tantamount to an undivided half, and it may as well become legally and equi- 
tably an undivided ownership, terminable at some future date either by operation of 
a sinking fund or by voluntary agreement. But our view of the necessities of the 
public lands would lead us to obliterate, so far as this territory between the hundredth 
meridian and the Sierra Nevada Mountains is concerned, all segregation of odd and 
even numbered sections as unnecessary, wasteful, and inconvenient, and instead to 
merge these reserved belts all into one undistinguishable public domain, to be dealt with 
the same as the rest of the public lands, with the single exception of the formality of 
passing the title and disposition of the proceeds of the strip within 20 miles of the 
line of the railroads. At present, in theory, this immense territory is to be subdivided 
into several hundred thousand checker-boarded 640-acre squares, the railroad com- 
panies taking every other square. 

It is useless to carry out this purely arbitrary demarkation ; for economic uses they 
are one and inseparable, and they may and ought to be so in treatment. It is believed 
that the railroad companies would conseut to surrendering their lands back to the 
control and disposition of the government, and, if we mistake not, have offered to do 
so upon consideration of an allowance upon their indebtedness to the government 
growing out of their subsidy bonds. Even this is not necessary, and their consent can 
probably be had, or at any rate it can be proposed, to apian whereby the whole of the 
lands within the limits of the reservation shall be thrown into the general scheme of 
survey and disposal as herein outlined in which the territory shall be cut up and sur- 
veyed into tracts of such shape and size as will best adapt them to their proper eco- 
nomic uses. In this system the boundaries will be settled of each particular parcel by 
these considerations, in which, of course, the shape and contour of the surface of the 
earth, timber, and water supply will have due weight. Townships and sections need 
not be run at right angles as now. The lands will be surveyed geologically and eco- 
nomically, with a view to allot the water to the land it naturally serves; and not, as 
now, sell the water away from or without the adjunct of the area of land it confers 
value on. 

In regard to compensating these railroad companies for this surrender, the difficul- 
ties are not so great as may at first glance appear. It happens that both the Centra'. 



V 



PUBLIC LANDS. 179 

and Union Pacific Companies, and perhaps the Kansas Pacific, and Atchison, Topeka 
and Santa F6 might be in part included, have had to borrow money upon the pledge 
of these lands for the completion of their roads. The lands have been mortgaged to 
secure bonds to the extent of $10,000,000 in the case of the former company, and to 
the amount of $10,400,000 in the case of the latter. By the terms of these mortgages 
the net proceeds of land sales are to be used in redeeming the bonds themselves, and 
a special and particular release of each several tract by the trustees is required in con- 
veying title to the purchaser. Bonds have been redeemed by the Central amounting 

to | , and by the llnion Pacific Company, § ; leaving $ and $ 

outstanding respectively. The Kansas Pacific lands west of the hundredth meridian 
are mortgaged separately, and could be dealt with in a similar manner. 

Now, it occurs to us that this same machinery might be made use of by the United 
States to get rid of this lien, and to pass a perfect title to purchasers. If Congress 
will but pass the act herein recommended relating to the survey and disposal of pub- 
lk lands, one section of which shall provide for the recompense of the lands granted 
to these Pacific Railroad Companies subject to these mortgage claims, giving to the 
•d States authority to survey and parcel them as it may see fit without regard 
to section or township lines, and to dispose of the same like other public lands at such 
price as it may elect, not less than $2.50 per acre until otherwise ordered, one half of 
the proceeds of any such tract or parcel, any portion of which shall be situated within 
the twenty-mile limit from the center line of said railroad, to be paid over to the 
trustees under said land mortgage and be by them applied to the redemption or pur- 
chase of said bonds ; and the assent of said trustees shall be necessary to the convey- 
ance by the United States of any such tract or parcel, and shall not be refused nor 
withheld from such conveyance upon the tender to them of one-half of such purchase 
money at the time said deed or patent is offered for signature. These bonds are due 
between the years 1887 and 1895, and will within fifteen years be nearly, if not quite, 
extinguished. When paid and canceled, the one-half of the proceeds of the public 
lands sold thereafter might be turned into a sinking fund for the extinction of the 
indebtedness to the United States in cases where there was any. 

The lien of the land bonds is superior to that of the United States, and it will ac- 
quire perfect title by their extinction. The lien of its debt claim is subordinate to 
that of the first mortgage bonds. Every bond of either class redeemed out of the 
proceeds of these lands is therefore improving the tenure and security of the govern- 
ment for its debt. The practical working of this would be sales of a hundred or pos- 
sibly a thousand acres for one now sold. Instead of confining purchases to a 
single quarter section containing a spring or water course, with the expectation of 
grazing several thousand acres adjacent, the lands would be divided according to 
their industrial fitness, and who wanted to buy water must buy land with it in this 
dry region. In this way there would be no tendency to monopoly of water such as 
is now witnessed, nor such liability to breaches of the peace and demoralization of 
steady pursuits, where all are alike trespassers on the public lands. 

Washington, D. C, December 3, 1879. 
To honorable Public Land Commission : 

The foregoing is respectfully submitted as a practical solution of the difficulties 
which now surround the lands of the government and the railroad companies in the 
great basin between the Wasatch and Sierra Nevada. 

B. B. EEDDING. 



Testimony of J. H. Bedstone, president of the California Protective Union, San Fran- 
cisco, Cal. 

J. H. Redstone, president California Protective Union. 

It has not been understood by the settlers throughout the State that this Commission 
designed to enter into the subject of lands in the manner it has entered into it — i. e,, in 
regard to the disposition of the land. It was supposed that they were here for an 
especial purpose. I regret very much that we cannot have some witnesses here from 
some other counties. 

I will state first that the views of the settlers of the State relate more especially to 
the social effects of the jurisdiction of the land system than to the moneyed consid- 
eration. We believe that it is for the interests of the State that the most useful set- 
tlers should be subserved in the disposition of the land — i. e., those who intend them- 
selves to improve the land. We are opposed to the sale of land in ioto. We do not 
believe it should be sold or homesteaded only under a system that will inure the 
occupation of the land by actual settlers. We do not think that it is proper for 
the government to be in any hurry to dispose of the land ; that it is a better custo- 



180 PUBLIC LANDS. 

dian of the people's interest in the land than any one else. We believe that these 
lands should be held in the interest of the coming generations, as well as for our- 
selves. It has been stated that we have useless lands. Lands that at the first seemed 
to be barren and useless have proven to be the most valuable lands in the State. The 
mountainous lands are among the most valuable lands we have, and they have become 
valuable in supplying the world with the finest of fruits. The best and finest fruits 
can be raised upon the slopes of these mountains. For that reason the water rights 
should not. have passed into the hands of the State. They should be reserved for the 
people. Every inch of land that can be irrigated by that water should be protected ; 
the water being a part of the land, should not have been disposed of by the State in 
such way as to jeopardize the future reclamation of the land in auy particular, be- 
cause the land is dependent upon the water for its irrigation. 

It has been said that the lands cannot be irrigated by the settlers themselves, and that 
they should pass into the hands of large owners or capitalists, who would irrigate 
them and sell them. I understand the railroad companies have suggested that the 
government should exchange the odd sections, thus bringing their bodies of land to- 
gether, and by that means they would secure the whole of the irrigable lands and 
some of the timber lands. By that method they would certainly secure the whole of 
the irrigable land, and the people would not know how it was done. It is my opinion 
that if we will look at the history of the organization of these land-owners we will 
find that the land has been taken up and held with the prospect of profit ; that it is 
not in the interest of people that the land has been taken up, but it has been taken up 
and withheld from settlement until the clamor of the people for land has forced it into 
the market at a high price. That is the result of owning land in large quantities. It 
is not to bring the land into the market, but to keep it out of the market until it is 
worth a high price. Anything that tends to keej) all the lands in the hands of one 
individual is detrimental to the x>eople. The character of the settlers who occupied 
Miller and Simons's lands is that of men who spent their earnings in the whisky-shops. 

We propose that the government shall sell no lands. All the land sold is for specu- 
lative purposes. It should be homesteaded, and the land should be open only to actual 
settlers in order that it may be scientifically and properly improved. We contend that 
no land can be properly improved, even by irrigation, if it is held by a large company. 
There is a company that has 1,500 miles of ditches; but yet there is strife there, and 
there will be the same result here — it is only a difference in degree. We are opposed 
to the monopoly of land in any form. We believe it is taking away our rights. The 
settlers of California believe in that policy which will produce the largest number of 
men. 

Q. What have you to say concerning timber lands ? — A. I contend for the present 
that we should not be in a hurry to dispose of the timber lands. Whenever a man is 
willing to take up 160 acres, or whatever more is deemed by the best judges as the 
proper amount, he should be allowed to take up that amount, and if he wants to build 
his little ranch there, and have the timber to sell, he should have the right to cut it 
down and sell it to the men who have the saw-mills. The timber land will not then 
be taken and the land stripped of its timber where there is no market for it. I think 
it is the duty of the goverument, wlien they find out the condition of affairs here, to 
prepare these lands as fast as possible for homes by a general system of irrigation. It 
may be irrigated, it may be cut up with a perfect network of transportation, by which 
it may be made one of the great supplies of land of the nation. I would have a na- 
tional system of irrigation. 
* Q. How would you protect the timber ? — A. I would protect — I would have the same 
safeguard thrown around the timber that there is now. I would allow no man to cut the 
timber for sale on the government land. I would protect it by punishing depredators 
the same as for any other criminal act. I really think it can be done by opening up 
our lands to actual settlers, and by throwing oil' all this disguise and all those false 
provisions which, it is pretended, are in the interest of the people, and whereby the 
large corporations of this State and other places have got their interest together and 
have got the public machinery to working in their own interest. I think that we 
ought to stop all that as soon as we can. Large tracts of land would be taken up and 
a system of irrigation adopted if men could be sure that they could settle on the lands 
without being overreached by these land grants. The grants ought to be settled and 
their boundaries fixed. The government ought to exact a survey in every instance, 
and it is the duty of the government to take hold of the matter and have it adjusted. 
I think it is the duty of the government, first of all, to have the land in this State 
surveyed thoroughly, so far as these conflicting titles are concerned in regard to large 
grants. It will stop the trouble and bloodshed which will come after awhile if it is 
not done, for the people in Tulare County, who have settled on the land and taken out 
the water, will not leave these lands alive; and if they are forced to pay the price 
demanded for them by the owners I believe they will either live there without paying 
it or die there. 

I believe in the timber ranch the same as the agricultural ranch. In the valleys timber 



PUBLIC LANDS. 181 

is one of the best crops that can be raised in that country. I would limit the timber 
ranch so as not to have it exceed 160 acres. The homestead laws are generally made in 
such manner as to deceive the people. The laws are usually made so that the people 
cannot fulfill the provisions of the law. These land laws ought to be made definite and 
clear. We have no laws. Our laws have all been destroyed, so far as their practical 
use is concerned, by this law of precedent. I would not have any lands sold. I would 
leave the ownership in the government. I do not see any practical way of doing that, 
but it would be the best wav. I think the government ought to hold it in common 
for all. 

Here is another point. It has been suggested that $5 per acre should be paid for 
arable lands. Five dollars would not be too much for the timber lands, but there is 
not a man, under the present rate-system, who can go on a piece of land with the expecta- 
tion of earning that land in a lifetime. xso man should be forced to purchase the land. 
He cannot take care of his family and save enough money to do it. All the government 
lands are taken up here. 

• 1 am opposed to an increase of acreage. I think it would be a benefit to but a few 
men. The government can dispose of these lands as the people in Tulare Valley got 
them. As soon as a man undertakes to pre-empt a piece of land now, and he gets one 
or two neighbors, here comes a large land owner and takes a large piece of land there ; 
the chances are that he will be surrounded by large land owners. You can prevent 
them taking these large tracts of land in two ways. I would take the way Pennsyl- 
vania has done, of forcing these large men to improve their lands. I do not believe 
there are but very few men who can take large tracts and improve them. I should 
have no land sold by the government except such land as was to be occupied as home- 
steads. You give me a right to do this and I will bring you one million of men who will 
take these lands and irrigate them. The moment this land is opened up to settlement 
they are all taken. As long as men have the money and power, as long as men are selfish, 
they will wrong their fellow-men and monopolize the rights of others. 

I am aware that irrigation — I have been a civil engineer for some time — can be had 
at a nominal expense, compared with the expense that heretofore has been considered 
as necessarily attending it. A gentleman will testify before you who is an expert. He 
will tell you that in all the coast this thing can be done at a nominal cost, and at an 
expense which will add but little to the cost of the land, I would prefer that the 
government should manage these irrigation ditches and then offer the land for sale, 
instead of letting compauies do it. 

Q. Have you anything to say concerning the desert-land act ? — A. The desert-land 
act is one of the greatest engines by which such things have been done. There are 
many others, the Mexican grant system being one of the most prominent. They are 
false grants more than anything else. 



Testimony of J. A. Robinson, San Francisco, Col. 

To the Public Land Commission : 

Gentlemen: With reference to the mining law I will state the act of July, 1866 
limited mining claims located subsequent to that date to 3,000 feet in length, and 
recognized the" validity of all the locations in force at that date. 

The act of May, 1870, referred especially to placer claims. 

The act of May 10, 1872, reduced the length of mining claims to 1,500 feet with sur- 
face ground 6C0 feet in width. 

The act of July, 1866, required the applicant to present his application to the local 
land office and after advertising the same for ninety days the survey would be made 
upon the certificate of the register of the United States Land Office certifying that 
there was no adverse claim, &c. 

The act of May 10, 1872, changed this and required the survey to be made first by 
the United States surveyor-general, and the advertisement to follow. 

There are many valid claims in California of a greater length than 3,000 feet yet to 
be surveyed and patented. Patents have been issued in this State to claims of 5,000 
feet in length with surface ground claimed for milling purposes several hundred acres 
in extent. 

There is nothing in the mining law compelling the owner of a mine to have it pat- 
ented. 

Many of the locations under the present instructions, rules, and regulations will be 
found defective. In many cases the record of location is lost and an affidavit of some 
person or persons becomes the basis of the survey. 

Under the act of 1872 many surveys are made overlapping each other, producing con- 
fusion and endless litigation. 



182 PUBLIC LANDS. 

Many claims after being surveyed and advertised are not paid for by the owners, as 
they either do not have the money or want to use it. 

The Commissioner of the General Land Office during the past eight or ten years has 
promulgated many rulings and decisions, which under the law he is authorized to do, 
hence it is more difficult to obtain a patent now than formerly. For example, the con- 
necting line at first was several miles in length if the mine was on surveyed land, the 
Commissioner then fixed the limit at two miles and subsequently at one mile, hence a 
large number of mines surveyed in 1873, '74, and '75 are now coming back with instruc- 
tions to the surveyor-general to require the survey of the connecting line to be made 
to conform with the present instructions. This is done at the expense of the claim- 
ant and has caused a great deal of bad feeling, as the miners claim they complied with 
the law at the time the survey was made. 

Another cause of complaint is with reference to the office-work. In 1872 the office- work 
in the surveyor-general's office was fixed at $30 per claim, it is now $45 per claim of 
1,500 feet in length by 600 in width; this includes $5 under the head of stationery. 
Mine owners say this charge is exorbitant, that the United States might as well include 
a charge for rent of office. The examination of the reports of the surveyor-general for 
Utah shows that the office- work charged in that Territory is $25 per claim. In the 
State of Nevada it is $30 per claim. In Colorado it is $16 per claim. Hence there 
should be a uniform price charged as the work should be similar in each office of United 
States surveyor- general. 

In the matter of the United States deputy mineral surveyors there is not sufficient 
care exercised in the appointment of these officers, many of them being unreliable. The 
law at present requires the applicant to swear to all his papers within the land dis- 
trict. This has occasioned much inconvenience and unnecessary expense in com- 
pelling mine owners residing in San Francisco to visit distant points to comply with 
this requirement. An affidavit made before any officer legally authorized to adminis- 
ter oaths should be received in any land office. For example, it is required of the 
claimant in a mill-site to swear to the non-mineral character of the land. Living in 
San Francisco and perhaps never having visited the locality he is unable to comply 
with the law. So with reference to the proof of posting the notice on a mine during 
the sixty days' publication, it must be made by one of the claimants. 

As a large portion of the mines are owned in San Francisco by capitalists and 
bankers it is hard on them to comply with this requirement, as they cannot leave 
their business and watch the posted notice during the publication of the application 
for patent. 

The United States mining laws should be amended in many particulars. The local 
laws, rules, and regulations of miners should be done away with. A party wishing to 
locate a mine should apply to the United States surveyor-general and have him make 
a survey of his claim, establishing the corners. If upon surveyed land, the surveyor- 
general should plat it in its proper place on the township plat, and the land embraced 
in the location should be held in reserve until it could be advertised and sold. After 

survey no second survey should include any part of said mine so surveyed and 
approved. The length and breadth of mining claims as fixed by the act of "May 10, 
1872, should be continued. A person can locate and own a number of these claims if 
he so desires. 

With reference to side lines, the law should permit the owner of a ledge or lode to 
follow it, even if it passes outside his side lines. When the mine owner pays for the 
land he should be credited with the amount paid for office work as shown by his 
subtreasurer's receipt. A time should be fixed within which payment should be 
made for land embraced in a mining survey. Six months after the expiration of the 
published notice would be a reasonable limit within which to make payment. The 
registers and receivers should be competent and qualified to examine the papers filed, 
and should not be permitted to send up defective cases to the Commissioner of the 
General Land Office and make the latter officer perform the duties devolving upon 
them. They should be required to send up a statement with each case, and not send 
up a case unless on appeal without every paper and date had been supplied. 

The department should fix a time within which a patent should be issued after it 
reaches the General Land Office, say not to exceed one year. As it is now, cases are 
sent up badly and improperly prepared by incompetent persons, requiring the depart- 
ment to do the work the owners have paid some attorney to do, thereby causing delays 
in the issuance of patents. Furthermore, deputy United States mineral .surveyors 
should be prohibited from preparing applications for patent or any other paper, 
excepting the field-notes of their surveys. 

The law with reference to registers and receivers should be amended so that in the 
event of a vacancy in either of the offices the other officer should perform the duties 
of both offices until the vacancy is filled. 

The Commissioner should designate one paper in each land district within which all 
applications for patent should be advertised, and should establish the rate to be 
charged for publishing the notice. 



PUBLIC LANDS. 183 

SPANISH RANCHES. 

Judge J. W. North, in his testimony before your Commission, says " that not more 
than half of the Spanish ranches have been surveyed.". He is mistaken. Seven-eighths 
of them have been surveyed and patented, and one-half of the remaining eighth have 
been surveyed and are pending before the Commissioner of the General Land Office 
and Secretary of the Interior. 

Some of these surveys have been made many years and have been pigeon-holed in the 
Commissioner's office for a number of years ; for example, the " San Vincente y Santa 
Monica " " Los Palos Verdes," both in Los Angeles County; "City Lands of Monterey," 
•'Mission La Purrisirna," "Pueblo of San Jos6," "Pueblo of San Francisco," and. "Agua 
Caliente." 

Mr. Madden, of the Southern Pacific Eailroad Company, also refers to Spanish 
ranches, and says they ought to be surveyed at the expense of the United States and. 
the cost taxed against the grant. This is now the law, and there is money appropri- 
ated by Congress to make these surveys whenever there are any to be surveyed. This 
work is not behind in the surveyor general's office in this State. 

PUBLIC SURVEYS. 

The present rectangular system of surveys cannot be improved, and should be con- 
tinued. The rates for public surveys now paid are ample and sufficient to do good 
work and leave a profit to the contractor. The contract system should be abolished 
entirely and the deputies should be paid a salary. They should be men of ability and 
integrity. 

IRRIGATION. 

This question should be left entirely to the State. 

J. A. EOBINSON. 
San Francisco, Cal., October 13, 1879. 



Testimony of L. L. Robinson, San Francisco, Cal. 

L. L. Robinson, of San Francisco, testified, October 14 : 

I have lived in the State twenty-five years, and have had a great deal of experience 
in all matters connected with lands, mining, &c. 

Question. Would you recommend any change in the system of disposing of arable 
lands ? — Answer. No ; I don't think I would. 

Q. Do you recognize what we call timber lands ? To what extent are they being 
destroyed ? — A. I am familiar with the timber lands, and they are being wastefully 
destroyed. The waste of timber is dreadful. The chief source of destruction is by 
irresponsible parties going in and cutting the finest trees they can find for the pur- 
pose of making a few shakes, and of course the balance of the tree is left to decay. 
This is one of the causes of destruction ; another one is the carelessness of sheep 
herders and cattle men. They are very careless about their fires, and when they leave 
them unextinguished they catch to the timber and burn up the forests. Another cause 
is, there is no ownership in the land. Everybody comes in and gets it and cuts it down 
to suit his own purpose. A man will come in and start a saw- mill, and having no 
capital to carry it on, he will have to cut down the best kind of timber, which is never 
used. The destruction of timber is fearful, and if it is continued I think the most 
disastrous results will follow to this State. My idea is that the proper remedy is 
either to put the timber into private ownership, or else establish a supervision under 
very rigid laws, which should be enforced. I would establish foresters or establish 
some department that should exercise strict supervision and control over the timber. 
I do not care how it is done ; but somebody should have control of it as long as the 
ownership is under the government. Have it supervised or guarded. I should* pre- 
fer that it should pass into the hands of individuals, because then they would take 
care of it themselves. It is not practicable to hold this land with small ownerships ; 
but I am inclined to think that it is desirable to sell these lands into one-hundred-and- 
sixty-acre tracts. I think the timber lands should be sold with reference to location 
and its abundance, particularly in the mountain regions, where men can only get to 
the wood by the construction of roads, because it is very broken country. A man may 
take up 160" acres of timber land, but he cannot get to it. I would suggest that they 
be surveyed with reference to the topography of the country. 

Q. What about the mineral interests in this country ? If you allowed large tracts 
to be taken up for timber purposes, would people not in that way obtain control of 



184 PUBLIC LANDS. 

large mineral tracts ? — A. I would separate the two rights. I would never have a 
mineral right interfere with the surface right. I think the subterranean rights should 
he reserved, because the mineral interest is one of the most important. It would be 
unwise to give title to the center of the earth to the agriculturist or to a man who 
would cut the timber. How that system is to be carried out I am not prepared to 
state, unless it is done by the old Spanish and Mexican method. Any man should be 
enabled to go and " denounce " a mineral claim on another man's land if he paid for 
the damage he did. 

Q. What are your views in regard to the irrigable lands ? — A. I am not entirely 
familiar with the question. There are several portions of the State of California in 
which little or nothing can be raised except by irrigation. It certainly cannot be de- 
pended upon except by irrigation. Mojave Desert is certainly valueless for agricul- 
tural purposes except by irrigation. Take the Tulare Valley ; it would be almost val- 
ueless except that it can be irrigated. Take the west side of the San Joaquin from 
the foot of Tehatchepi Pass down for miles ; the raising of crops is very uncertain 
except by irrigation. The question of water right comes in and demands immediate 
attention, and as soon as some proper law is adopted a great deal of litigation will 
cease. The irrigation question is one that requires a most careful study. I think in 
some cases the water and land should go together ; but again there are other cases 
where the control of the water would give a man absolute control over a large body 
of land. The difficulty with the water rights is that the amount of water necessary 
for irrigation purposes is always taken out higher up than the land, and may be forty 
or fifty miles from the land it is destined to irrigate. I do not know of any system of 
government laws that will regulate that. 

Q. Here is an area of land to which the water can be taken. Should the utilization 
of the water to that land secure the right to its exclusive use, and should the water 
right "float," thus enabling the owner to take the water wherever he pleases ? — A. I 
am connected with the Eiverside Irrigating Company. They have spent much money 
for irrigating ditches and are continuing that system to a large extent, and they use 
the water only in connection with the soil for irrigating purposes, and the water is 
always to be used for that purpose. To some extent the old riparian rights must fail 
here. I know many instances where riparian rights are owned where the land is 
totally valueless. If that water was diverted it would make good agricultural lands. 
I think that water should attach to the irrigable lands. Our irrigation laws have not 
as yet been well adjusted ; the system is inchoate to a great extent. 

Q. Can, in general, small irrigable tracts be utilized by individuals?— A. Not judi- 
ciously, except in special instances. As a rule, in the country where it is necessary to 
irrigate lands they have to be located in a body sufficient to justify the parties in con- 
structing irrigating ditches, reservoirs, &c. Agriculture by irrigation is not, as a rule, 
available to small owners of land. The body of land to be irrigated must be large. 
It requires a large capital to construct the ditches, and after they have been con- 
structed and the land irrigated, then it is divided up into small tracts to individual 
owners. Large owners cannot farm to any advantage ; they must dispose of the land. 
The land is eventually certain of being divided and passing into the hands of indi- 
vidual owners. That is the object of these irrigating companies. They purchase the 
land for $1.25 per acre, and after the water is put upon it it will bring a much higher 
price. This justifies men in taking hold of it, but it eventually passes into the hands 
of small owners. At least I don't think the Government can properly carry on these 
irrigation schemes. The corporation system is the only one, in my opinion, that will 
be successful. 

Q. What have you to say about the pasturage lands?— A. There are three classes of 
pasturage lands in this country. One is the mountain pasturage, another one is the 
lands in the great valleys that are not fit for agricultural purposes, and the third 
class of the pasturage lands is upon the tules. The tule lauds are generally in private 
ownership. The dry pasturage lands in these arid valleys are not irrigated, and prob- 
ably never will be, for they cannot be reclaimed in small tracts — anybody who takes 
up 160 acres Avill starve on them — and they cannot be bought in large tracts ; and yet 
it must be 1 held in large tracts in order to justify the keeping of stock upon it. The 
mountain pasturage lands are open to every one who sees lit to drive stock iuto them. 
Tie, are pasturage lands only in the summer season : these mountain p Lands 

are also timber lands. The foot-hill lands, which extend a \ high as twenty-five hun- 
dred feet above tide-water, contain a good deal of early pasturage; but as the season 
advances, and water fails in the streams and the springs dry up, the stock is forced 
higher up, where they stay the balance of the season, until the snow drives them out. 

Q. What do yon think of the propriety of reserving these foot-hills as mineral 
lands? — A. I think they should be disposed of in 160-acre tracts; that is, if the gov- 
ernment proposes to foster the mining industry at all. A great deal of the foot-hills 
may become very valuable for raising fruits and vinos ana some grain. Thes aie be- 
ing occupied more and more every year, and I think a great many people obtain a 
Sort of quasi t i 1 ! o without getting a government title. 1 would separate the surface 



PUBLIC LANDS. 185 

and mineral rights. If a man has been damaged "by the operations of a prospector, 
he should be remunerated, but our local laws can regulate that. The prospector is not 
a farmer, nor does the farmer want to prospect. The interests are distinct for that 
reason, though they are closely combined. 

In the lands of the Sierra Nevada are found the most valuable quartz mines we have. 
Hardly any quartz mine in the State will run above an elevation of 3,000 feet. I am 
speaking of the west slope of the Sierra Nevadas. My method for correcting the evil 
would be to sell the land as agricultural land, reserving the right to the mines. Ten 
acres of land may hold untold millions, and, as the mining here is in its infancy, par- 
ties, even in agricultural operations, may develop quartz lodes or mineral lodes of very 
great value. Where a prospector might hunt for months the greenest might strike a 
mine. I would reserve the mineral land for mining uses and purposes. 

Q. How much of these pasturage lands is necessary for a homestead ? — A. I do not 
think any given rule will apply, because it depends upon what part of the State the 
land is in. In some portions of the State a man will get along with a small tract of 
pasturage laud, but in other portions he will want many thousands of acres. I know 
quite a large tract of land where as sheep and cattle eat up the food in the upper val- 
ley they keep moving down toward tide- water to get grass. All cattle and sheep must 
have water ; but you cannot always get it. Even a system of artesian wells will not 
supply eighteen or twenty thousand sheep. 

Q, Does grass deteriorate under pasturing, and will it not finally be destroyed ? — A. 
No, sir ; that has not been my observation. The grasses are perennial. If the cattle 
are put upon the land when it is not muddy I think the grass will always come up. Of 
course it depends upon the seasons. I do not think, as a general rule, the grass will 
all die out finally. It is worse on the eastern side of the Sierra Nevadas than it is here. 

Q. Have you thought of dividing these pasturage lands into farms in such manner 
as to secure the greatest number of water fronts to the pasturage farms ? — A. No, I have 
not. I think at the present time it is scarcely possible to do that, because the best 
water has been taken up. The Spanish grants, whose exterior boundaries run to the 
boundary line of the State, have taken up all the water that is desirable for stock pur- 
poses. Most of these lands, however, are subdivided and are now passing into small 
ownerships. 

Q. Have you any suggestions to make concerning the Spanish grants ? — A. There 
are very few grant cases now undetermined in the State. Almost all of them have 
been surveyed ; indeed, I do not think I have ever known a set of men worse treated 
than the Spanish ranchmen. With reference to the surveys, I think the surveys of 
California, as a general rule, are very far from being correct. I think there has been 
great carelessness displayed, and I think there are very few surveys that will bear 
close inspection in the State of California. Whether it is owing to the mode in which 
the lands have been surveyed by contract, or from carelessness, I cannot say. Nor do 
I know of a better mode ; but I would recommend the employment of a better class of 
men. It is my opinion that the contract system is one which tends to secure very poor 
work. I think the day system, under conscientious surveyors, would be preferable. 
It would conduce to more accurate work. I have been connected with hydraulic 
mining for fourteen years. There has been a great deal said with reference to the 
value of farming land injured by the debris, and the value of the mines causing the 
injury, and I think some testimony has been given here concerning this point. 

Q. I understood, Mr. Eobinson, that you are familiar with hydraulic mining. Will 
you give us in your own way a statement concerning hydraulic mining and its effects 
generally upon the agricultural lands ? — A. As to the relative value of farming lands 
injured by debris from the gravel mines compared with the value of the mines, I desire 
to state it is a very small percentage. The debris (so called) from the gravel mines 
alone is not as injurious to farming land as is the case with the tailings from quartz 
mines and mills, which are poured in large quantities from these sources into the riv- 
ers, as the quartz does not decompose, whereas the material held in suspense in the 
rivers from the gravel washing, after it is deposited on the land in the main valleys, 
will in a few years make excellent arable land. The industry of hydraulic mining or, as 
it might properly be called, gravel mining, is a very large and important one in the 
following counties : Stanislaus, Tuolumne, Calaveras, Amador, El Dorado, Placer, Ne- 
vada, Sierra, Plumas, Butte, Yuba, Shasta, Siskiyou, Del Norte, Trinity, and Klamath. 
In these counties, and connected directly or indirectly with gravel mining in various 
ways, at least $100,000,000 has been invested. 

The most important branch of gravel mining is done by what is known as the hy- 
draulic process. I am personally interested in two mines of this kind, and have been 
for the past fourteen years. In these two mines, the North Bloomfield and Milton, 
situated in Nevada County, about $4,000,000 was invested, taking- over ten years to 
get them in complete working operations. In connection with these two mines we 
have driven, through hard rock, over four miles of tunnel to reach the gravel, the 
largest single tunnel being nearly two miles in length, constructed at a cost of nearly 
$600,000. One of these mines, the North Bloomfield, is supplied with about 3,000 



186 PUBLIC LANDS. 

miners inches, or 55,000,000 gallons of water per day of twenty-four hours the year 
through. The miner's inch of water is 2,230 cubic feet, that will flow in a day of 
twenty-four hours. This is regulated by an opening an inch square, with a pressure 
above the opening of six inches. We settled that two years ago by a large series of 
experiments. The water is brought from a reservoir in the high Sierra Nevadas ; 45 
miles, through a canal across a most difficult country, at a cost of over a half million 
of dollars. This reservoir, which consists of two stone dams, one of which is n 
100 feet high, having a storage of 1,000,000,000 cubic feet of water, was constructed at 
a cost of $250,000. The other mine, called the Milton, is supplied with about 50,000,000 
gallons of water per day, brought 75 miles over a very rough section of mountain 
country from a reservoir near the summit of the Sierras. This reservoir, which is 
formed by three stone dams, one of which is among the highest in the world, being 
nearly 150 feet in height, will hold 900,000,000 cubic feet of water. In the mines of 
these two companies alone there is used yearly about 1,750,000 miner's inches of water. 
Each inch of water is equivalent to 2,230 cubic feet. The amount of gravel moved per 
year by this quantity of water, used as we use it, under a pressure varying from 275 
to 400 feet, through nozzles varying from 6 to 9 inches in diameter, against gravel 
banks varying from 50 to 400 feet in beight, will amount to about 5,000,000 cubic yards, 
and the gross yield of gold is about $1,000,000 x>er year, averaging about 20 cents per 
cubic yard, or 55 to GO cents per inch of water used. The yield of gold from the gravel 
mines of this State is about $12,000,000 yearly, averaging about $1,000,000 per month. 
This yield will continue for the next forty or "fifty years to come from this source aicr.e, 
I do not think it will increase materially, from the fact that the water supply is lim- 
ited. Nor do I think that the mining machinery and appliances employed at present 
can be materially enlarged or increased with economy in results. The machinery and 
appliances connected with this class of mining has about reached its maximum. 

On the western slope of the Sierras there are some eight or ten counties where gravel 
mining is the principal industry. The number of such mines, including hydraulic, 
drift, placer, and river, is very great. At least 100,000 persons derive their support, 
directly and indirectly, from this kind of mining. To stop it would depopulate nine 
or ten of our most prosperous counties, ruin a large proportion of our State population, 
and load down the balance of the State with taxes which they would be unable ro 
bear, and would be most disastrous in all ways. 

The damage to the lower rivers, bays, and harbor, caused by gravel mining, has been 
very much exaggerated. Much the largest portion of the material filling our harbor 
comes from the operations of the farmers and other causes, and not from the opera- 
tions of the miners at all. The mining rivers, as they are called, from the gravel mines 
to their debouchment into the plains, have been filled up to a great extent by the 
operations of the miners, both gravel and quartz ; but even this filling is aided by nat- 
ural causes. As to the damage caused to the lower rivers, bays, and harbor, by filling, 
the acts and doings of the farmers and others contribute 15 cubic yards or more where 
the miners contribute one. In our light soils, upon land at all rolling or inclined and 
not absolutely level, the constant yearly degradation is very great. And when it is 
remembered that the area draining into our lower bays and harbors covers nearly 
60,000 square miles, it is not to be wondered at that a large amount of material is con- 
stantly being poured into them. The general impression is that all the vast amount 
of material deposited in our lower rivers and bays is from the hydraulic mines, when 
the fact is that their operations have but a very slight effect upon this filling. 

In early times in California, before the country was occupied by the Americans, the 
population was quite limited and scattered. The land was held in large tracts, and 
was only used for grazing. Our present system of cultivation was unknowu, and the 
surface of the ground was rarely or never broken up by the plow of the farmer. It 
was protected from washing by the grass roots, and the amount of material washed 
into the rivers was very limited in quantity; so much so that very little of it ever 
reached the harbor. Since farming has been carried on by our people upon its present 
large and increasing scale and area, the yearly increase in the amount of material 
pouring into the rivers and bays has steadily and rapidly increased, until it has at- 
tained such vast proportions as to causo great fear;; for the future. During the winter 
months the streams running into the bays and lower rivers are thick with mud. I should 
say that the degradation of the surface of the country occupied solely by the farmer 
has been increased, since farming was first commenced in California, say since L850, 
from ten to fifty times, depending upon soil and locality. Other causes are also tend- 
ing to shoal our harbor ami its entrance. The most important, perhaps, of these causes 
are the sewerage and waste from our city and the operations of the railroad company 
oj| the Oakland shore. This work is perhaps as injurious, if not more so, than any 
other single cause, for they are not only depositing a very large quantity of rev 
terial in the bay, but it is done in such a direction and manner as to cause the rapid 
shoaling of a large area of San Francisco Bay, diminishing its tidal area, with a con- 
sequent injury to our harbor. 

These grave results, which appear to be inevitable, are certainly not caused by the 



PUBLIC LANDS. 187 

miners, for their contribution is but a very small percentage of the injury from all other 
sources. We can measure with much certainty the results of mining operations, and 
particularly so with hydraulic mining, as in this class of mining our knowledge is de- 
rived from close observation and experience. There is used per year in hydraulic min- 
ing not exceeding 10,000,000 miner's inches of water (each inch representing 2,230 cubic 
feet). This quantity of water used under the hydraulic system of mining will move 
not exceeding 30,000,000 cubic yards of gravel. Of this amount at least 95 per cent, is 
lodged in the canons at or near the outlet of the mines. The remainder finds its way 
into the lower portion of the running rivers, rilling them gradually, until by the time 
it reaches the lower rivers and bays but very little is left. This material is not injuri- 
ous to any land, on the contrary it is as fertile as the silt or deposit from the Nile or 
any other alluvial river. 

Much the largest portion of the damage committed in proximity to the mining 
rivers between their outlets at the mouth of the canons and the main Sacramento 
River (which has been very much exaggerated) is due to mining upon these rivers and 
their tributaries long before hydraulic mining was in operation upon a large scale. The 
placer mines were innumerable, and the amount of material of comparatively light 
nature moved by the vast number of individual miners engaged in this class of mining 
was very great indeed. The material was of such a character that it flowed quite 
readily down the tributaries into the main canons toward the plains, where a larger 
portion of it remained until a stormy winter like 1862 came, when the canons were 
swept clean to the bed-rock, and the debris was poured into the lower portion of these 
rivers, filling them up. Since hydraulic mining has attained its present magnitude 
the material moved is of a much heavier character, and does not pass down the canons 
to the plains with the same facility as the lighter material moved from the placer mines. 
The heavy material moved by the hydraulic process lodges in proximity to the outlets of 
the mines, fills up the main canons where it becomes impacted, widens out the beds of 
these rivers preventing the winter rains from washing it out rapidly by causing the 
water to spread over a greater area, and impairing its force and power to move the 
material. In many places these canons are filled to a depth of one hundred feet or 
more, and the surface of the river is in consequence widened to several times its nor- 
mal width. The material thus deposited and impacted will not move down the canons 
unless mining ceases. If mining continues as at present, these vast canons will be con- 
stantly filling in the mountains until their beds are raised up to a level with the mining 
outlets, and as each year fills them more and more the surface of the river-bed becomes 
wider, while the power of the water to move the material down the canon will steadily 
decrease. The miners are now investigating the question of the construction of a series 
of brush or tree dams in the carious to aid in retaining both the old and new debris in 
proximity to where it is first lodged. The miners are, in fact, duplicating the filling 
of the old rivers from whence they are now moving the material with which they are 
filled to extract the precious metal contained therein. 

Should mining now cease, all the material at present in these canons (and the quan- 
tity is very large indeed) will certainly work down with the water upon the land below 
the mouths of the canons on the plains, and so continue for many years to come, to 
temporarily damage the lands in proximity to and along the course of these rivers 
after they have debouched from the mountains. 

There is but little doubt as to the feasibility of retaining the material at present in 
the canons in place, as well as to retain a very large per cent, of any new material which 
may be poured, into them from the mines. Nor is there much doubt but that the bal- 
ance of the material which will be held in suspense in the water can be utilized on the 
low lands (now valueless) in the main valley below, as well as upon the foot-hill lands 
in the way of irrigation, by distributing the muddy water over them as is now done to 
quite an extent in Yuba County successfully. 

The impounding of such large bodies of water as is contained in the reservoirs 
of the hydraulic mines has a beneficial effect in two ways ; it prevents it from 
coming down in winter season, thus diminishing the destructive power of these rivers 
in rainy season and stores it for summer use ( when there is very little water in the 
rivers) for mining and irrigation, equalizing, to a certain extent, the flow of water dur- 
ing the year. The mining reservoirs, costing from $50,000 to $250,000 each, already 
constructed for hydraulic purposes, can store at least 10.000,000,000 cubic feet of water, 
which is utilized during the summer or dry season through long lines of canals or 
ditches, constructed at a cost of from .$5,000 to $10,000 per mile. The amount of money 
expended in construction of these reservoirs and canals exceeds $20,000,000. In the 
future, when the gravel mines which these works were constructed to supply are ex- 
hausted, they will serve to irrigate all the lower slopes of the Sierras for cultivation. 
No possible system of agriculture could afford to construct such an extensive and ex- 
pensive system of irrigating works, and although the miners may in their operations 
for a few years commit some temporary injury upon a limited quantity of farming lands 
below them, yet the great benefits which such a vast water system will confer upon 
the million acres on the lower portion of the western slope of the mountain in the f acil- 



188 PUBLIC LANDS. 

ity and cheapness of irrigation after the mines are exhausted will compensate our 
State many times over for all the temporary damage now being committed. 

It is estimated by competent authority that there is yet remaining of known gravel 
between the South and Middle Yuba Rivers alone about 700,000,000 cubic yards of 
gravel, which will be mined out by hydraulic process, besides a large amount which 
will be mined out by drifting. It is safe to estimate that this gravel will vield from 
$150,000,000 to $200,000,000, and the principal part of it will be mined out during the next 
thirty or forty years. The gravel mines are situated on and along the mining rivers, at 
distances varying from 10 to 70 miles from their outlets in the plains, and they will all 
be exhausted long before these river canons will be filled to a level with the outlet from 
the mines. The gravel channels, where hydraulic mining can be carried on profitably, 
are well known and can be measured and estimated with considerable accuracy ; but 
the drifting mines in gravel are as yet scarcely known, and this latter class of mining 
as well as quartz mining (requiring but little water) will continue long after the for- 
mer class of mining has ceased entirely. The vast gravel deposits where hydraulic 
mining is carried on cannot be worked in any other way ; and there is, in my opinion, 
no doubt whatever but that the interests of the miners and the comparatively small 
number of farmers and others in the valley injured by mining operations can be har- 
monized by proper legislation, guided by intelligence and a desire to arrive at results, 
but it can never be done by litigation guided by those whose interest is subserved by 
fostering such a course. The interests at stake are of too momentous and important 
a nature, and the number of persons whose all is invested in mines and whose support 
depends solely upon mining industry is too great to be interfered with and destroyed 
by litigation. 

The net profits derived from hydraulic mining are not at all excessive, when the risk, 
length of time necessary to develop a mine, and the amount of money involved and 
expended, are taken into account. The North Bloomfield Gravel Mining Company was 
over ten years in opening its mine, and before any net returns were received expended 
over $3,000,000. The Milton Water and Mining Company was many years in opening 
its mine, and expended some $2,500,000 before any net return was received by it. Upon 
such ventures a larger percentage is justifiable than would be the case in any other 
industry ; indeed it is believed that none other than a mining community like Califor- 
nia would, undertake such a risk requiring so much capital and time. Yet it is believed 
that none of this class of mines pay over twenty per cent, per year as an average upon 
the capital invested, with interest, and nothing but the permanence of such a mine as 
those above mentioned would justify the risk and expenditure in any community. 
Many first-class hydraulic mines promise more than 20 per cent, but pay less. There 
is a great number of second-class mines of this kind, running during rainy season only, 
which pay their workmen good wages, with but little profit to the owners, and still a 
larger number of fourth-class, which barely pay their workmen and embarrass their 
owners. Yet they all find employment ffcr a large number of persons and support for 
their families. 

The gravel miners have gone forward with their enormous works, in the shape of 
reservoirs, canals, tunnels, and other works, such as have never been equalled in any 
other portion of the world, under the full cognizance of the United States and State 
governments, indorsed by the customs and usages of the community, and by the de- 
cions of the courts, and have expended over $100,000,000 in purchasing their claims 
from the government and in developing them, creating a property estimated at $250,- 
000,000 or more in value, and claim that they have acquired by their acts and doings 
vested rights which cannot, at this late day, be taken from them. Hydraulic mining 
cannot, as a general rule, be carried on with profit on a small scale. It requires a large 
body of ground to justify the expenditure necessary to open a mine, bring water to, 
and work it. Hence the necessity of large capital and consolidation of the smaller 
claims, which were originally taken up under the mining laws of the United States 
long ere this kind of mining was introduced. 

It will be a very serious matter, not only to California, but to the nation at large, 
if mining is stopped upon this coast on account of the injury committed upon a lim- 
ited and comparatively small body of farming land and a very limited number of peo- 
ple occupying the same. The value of all the land already damaged, or which ever 
will be damaged, is certainly not one per cent, of the amount of gold extracted from 
the mines committing the damage, and the number of people injured financially from 
these mining operations does not exceed five per cent, of the number which would be 
injured irreparably if mining was stopped. 

Our rivers in tho great valley of California arc extremely alluvial in proportion to 
their length, and are becoming' more so yearly, owing to the physical conformation of 
our State, the close proximity of the lofty and abrupt mountain ranges, as well as the 
character of our soils, and the long dry season, followed by a heavy rainy season, and 
the operations of the farming and mining population. The material brought down 
by these rivers, highly charged as they are with alluvium, would, if utilized, make 
the valley of the Sacramento and San Joaquin the most productive portion of our con- 



PUBLIC LANDS. 189 J 

tinent, and the time is not very far removed when our people will seek to utilize the 
alluvium instead of finding fault with it, as there are thousands of acres, now value- 
less, which would become the choicest of agricultural lands if the material held in 
suspense in our rivers from the farms and mines was utilized, instead of doing injury 
to our bays and harbors. 

I beg to attach hereto a map, compiled by Mr. P. Huerne, architect and engineer of 
the section of mining country between the South and Middle Yuba Rivers, in Nevada 
County, in this State, and in proximity thereto. This map exhibits, with much accu- 
racy, the general course of the known gravel channels, also the principal rivers and 
mining claims, as well as the location of several mining reservoirs, and the ditches or 
canals connecting them with the mines ; and shows also the general lay of this section 
of our State, where are located the largest and most important gravel mines of the 
world. 

I want to add a word more about the swamp lands. I used to have a good deal of 
controversy with gentlemen about the segregation of swamp lands, and what were 
swamp lands and what were not. There is still needed some legislation to modify the 
law of 1850, which was made for Arkansas, because the adjudication of the swamp- 
land question here requires a consideration of different seasons of the year and the 
difference in climate in different years as regards the water. In one case that was 
tried before me up at Knight's Landing, in which Mr. Redding here was counsel for 
the railroad, and in which there was a provision made for irrigating swamp lands in 
wet and dry seasons, I asked a man whether he would take this land on lease for ten 
years and take it without any artificial means, without dikes, levees, &c, but just as 
it was and cultivate it, and he said he would not take it. " Why not?" I asked. "Be- 
cause," said he, " I would be drowned out seven years out of the ten and burned out 
the other three." The three years in which he would be burned out would be because 
the sediment of blue clay would be impenetrable to the plow. 

Then, again, I have seen lands not protected by levees where a crop had been raised 
for two years together, and when I was on the land I saw the remains of wheat stubble 
which had produced fifty or sixty bushels to the acre, but where I saw it I was walkiug 
in tules over my head. This shows the difference in the land at different seasons, and 
you see how it is possible for a deputy surveyor to come in one season and say it is 
dry laud, while another season he might be up to his neck in water. And, then, there 
is a difference in the lands upon the mountains, which are swamp lands in one sense, 
but which the water does not injure, but rather improves. They are swamp lands in 
one sense, but, then, they are really swamp lands. You can't drive a wagon over them 
but at a particular season, and still they are profitable lands. 



Testimony of W. B. Bobinson, farmer, Tulare County, California. 

Hanford, Tulare County, California, 

October 4, 1879. 
To the Public Land Commission, Washing ton, D. ft; 

Gentlemen : Seeing a request from you in the agricultural public press of this 
State asking for answers to questions you have put forward, and being anxious to see 
what I consider some defects in the land laws and attendant subjects altered, I have 
tried to give a short reply, which I should have given at greater length but I am very 
pressed for time. However, if any of my suggestions are of use to you, and should 
you wish to know more on any of the subjects, I will gladly answer your further in- 
terrogations and do my best to further the objects you have in view. 
I remain, yours respectfully, 

W. R. ROBINSON. 
Answers to preliminary questions. 

1. I, W. R. Robinson, of Hanford, Tulare County, California, am a farmer, in joint 
partnership with J. S. Robinson, and of the firm of W. & J. Robinson. 

2. I have lived nearly five years in Tulare County, and seven years in the State of 
California, living formerly partly in San Francisco and partly in Mendocino County 
of this State. Am an Englishman by birth ; came to the United States in 1872 ; was- 
a student of the Royal Agricultural College, Cirencester, England. 

3. Never. 

4. By observation and study. 

6. I treat this question under question 27 of agriculture, latter part. 

7. They are so varied that I cannot do justice to the subject for want of time. The 
most of the public lands now left are mountainous and timber-clad. 

8. I have no means of examining the act of Congress referred to ; I shall try to treat 
the questions of land and classifications in answering your several questions. 



190 PUBLIC LANDS. 

9. I think it advisable to allow any one the right to hay 160 acres of land irrespect- 
ive of the fact that he has pre-empted or not, because I find there are many men who 
have pre-empted land and they have adjoining them a piece of land that is valuable 
to them, as lying adjoining their property, but useless to any one else either from the 
want of a spring of* water, or incapacity, owiugto rock, to sink a well. Thus land is 
held unpaid for, untaxed, and unoccupied by settler, and practically owned by the pro- 
prietor of adjoining deeded land. At other times by arrangement some man will acquire 
a title to such land only to redeed it to the first party above named This system is 
morally wrong and necessitates false swearing, seldom detected and punished ; while 
the right to buy such land not to exceed 160 acres would generally be availed of in 
these cases. 

AGRICULTURE. 

1. (1.) The climate of this locality, the "Muscle Slough district," situated in Tulare 
County, California, is warm, naturally dry, and healthy. 

(2.) Rainfall uncertain and deficient, averaging about 3 inches per year; often 
not more than 1 to \\ inches, and up to as many as 6 and 8 inches, in what may be called 
good years in this locality. 

(3.) Winter or wet season begins about November 15, to March 15 of each year, the 
rest being rainless. 

(4.) Snowfall none, but frost prevalent during winter. 

(5.) Supply of water for irrigation uncertain, owing to existing circumstances which 
I shall deal with under Question 8. 

2. (1.) First part already answered under Question 1. 

(2.) According to the season ; if warm weather in the mountains sets in early, water 
comes down in sufficient quantities in the spring to supply every one moderately, but 
the bulk of supply comes generally too late for early grain. 

3. Without irrigation, directly or indirectly, except in exceptional years, none of 
these lands will pay to cultivate. 

4. With irrigation the whole, more or less, according to the prevalence of alka- 
line properties, which kill all vegetation where they are too concentrated. 

5. Crops raised are varied ; principally wheat ; also alfalfa (Luzerne), beans, 
maize, Egyptian corn, pumpkins, melons, garden vegetation, and anything it pays to 
raise. The soil is susceptible of raising everything, but the discrimination in freights 
and the wretched prevalent laws regarding irrigation and water rights has crippled 
the district to a great extent. Five years ago people here raised castor beans, got a 
good crop, and could have made money at it, but the Southern Pacific Railroad, who 
carry wheat at $60 per car, levied a rate of $300 per car, same weight, as freight for 
castor beans and broom-corn, both of which we can grow to perfection, and both of 
which require a great deal of labor, giving employment to men and boys at remuner- 
ative rates: but existing freights are prohibitive, and neither crop is now raised. 
Fruit can be raised of any kind, but market is poor and local demand very small. 
These rates are suicidal to the railroad company, since it enjoys a monopoly of the 
carrying trade, because cither of the two last named crops can be grown after the 
wheat each year has been removed, and thus they would get freight "to carry which 
they have not now. Such is the art of discrimination in freights as allowed and prac- 
ticed in these States, where the Central Pacific Railroad and Southern Pacific Rail- 
road (both one company) reigu supreme. Roots of any kind can be grown here. 

6. If the land is dry aud has never been watered before, a stream of water that will 
go through a headgate 1 foot by 1 foot under, say, a 4-inch pressure, will wet 160 acres 
in four months, provided the neighboring quarter sections are being wetted also at the 
same time. Second year, water sufficient to keep the ditches full that are on the land 
will suffice — say one-quarter the quantity. 

7. A part of this district is watered by water from the Kaweah River, through one 
of its channels known as " Cross Creek,''* which bounds the district on the east, but the 
bulk of the land is watered by King's River. 

8. Under question I, section 5, I mentioned that the supply of water for irrigation 
was uncertain, and for the following reasons : First, because nature's supply is not 
always the samo, but principally because of State laws on irrigation are conflicting, 
intricate, and undecisive. A short history of the several canals (irrigating) that take 
out of King's River will be necessary to convoy my meaning. As long ago as twenty 
years one J. Morrow took out a small ditch direct from King's River to irrigate his lands 
on the margin of the same, carrying, say, 8 feet of water. Two or three others fol- 
lowed his example in the same small way. Then a man named Church took out a 
larger ditch and appropriated an old slough to convey it a large part of the way : he 
appropriated 44 feet. Then, about 20 miles below him, on the opposite Bide of the 
river, a company (known as Lower King's River Company) of about ?(' men took out 
whal may be called a canal to carry 100 feet, which it duly appropriated. Then 100 
men formed a similar company on this the same hide, known as the People's Ditch 
Company of King's River, took out a canal, and duly appropriated 100 feet. Then a 



PUBLIC LANDS. 191 

company, known as "The Last Chance Company," did the same, likewise appropriat- 
ing 100 feet. Then a company, known as the "Emigrant Ditch Company,' 7 appropri- 
ated 100 feet of water. These larger canals made Church's canal small by comparison 
and gave him larger ideas. He then took out a charter for 3,000 feet and enlarged his 
canal, and carries now, when full, 1,500 feet. Another company who helped him have 
taken out a canal of, say, 200 feet. Now, both the last companies take out higher up 
the river than any of the four above named (viz, Lower King's Eiver Ditch Company 
People's Ditch Company of King's Eiver, Last Chance Ditch Company, and Emigrant 
Ditch Company), and, when water is low, which it is from July to February, they, by 
maintaining a dam each and by the superior grade that the fall of the country allows 
their canals to have, do take nearly all the water dn the river, so that the four com- 
panies, who really have prior rights by appropriation, are dry while they are full. 

Church, the proprietor of the 3,000-foot canal, is a scheming man, who does not work, 
while the owners in the four canals above named, about 350 men, are ordinary farm- 
ers, working with their hands each day, and have no money to keep attorneys contin- 
ually under their pay watching the transactions of legislature regarding irrigation ; 
and thus, by complying strictly with the requirements of law, Church has been able 
to stand off all endeavors, where those defrauded have sought redress through the 
courts to obtain the water which by actual appropriation they have a right to. The 
people are in many cases in favor of a commission authorized by legislature, and would 
be willing to be governed by their decision after they had fairly investigated the 
whole ; but Church would oppose any such investigation, and those to whom he 
supplies water would back him, and so matters stand to-day. Those who jointly own, 
but who are poor, a right to 400 feet of water are now, and are so for seven months in 
the year, dry, while those who came after them are preferred before them. Our peo- 
ple are in favor of a State control of our water system, but such changes generally 
give greater taxation and often a chance for some dishonest men, not the choice of the 
people, to get into power and become enriched by their management, to the detriment 
of the land-owners. This question (8) has already taken up so much of my time that 
I must here drop the subject, but if you would wish further information I shall be glad 
to give you further particulars. 

(2) Irrigation has a tendency to bring the alkaline matters in the soil to the top, 
and often in such quantities as to damage the crops, but this is only in localities where 
alkali has previously been already predominant but laid dormant in the subsoil or 
elsewhere. 

9. (1) By percolation about 50 per cent., where the canals are new, is wasted in the 
niain and its branches before it is distributed ; in after years, less each season until, 
say, 20 per cent, is reached ; this includes evaporation by the sun. 

(2) Only such portion is returned to tbe streams as is not required, and that seldom 
occurs, as a preferable plan is adopted of not allowing that water to enter the canal 
when it is not required. There are no restrictions. 

10. All the water taken up in this locality was taken up under the mining laws 
then existing, and the law was complied with to the best of the ability of the appro- 
priators. For rest see Question 8. 

11. Please again refer to Question 8. 

12. Our lands are adapted to one crop as thoroughly as to another. Any or the 
whole can be sown to grasses. 

13. All the land in these parts herein referred to are taken up, and any family, after 
the ground is wet, can make a good living off 80 acres ; but in the neighboring unirri- 
gated lands which are not naturally fitted for irrigation (there is plenty unirrigated 
that can be irrigated), and in the foot-hills and mountains, less than 640 acres of land 
cannot support a family; hence it is that so much land still remains in the hands of 
government in these parrs, and always will, being strictly pasturage, and will average 
one sheep to the acre or one cow to five acres. 

14. (1) Not until five years after settlers have been allowed to pre-empt and home- 
stead 640 acres each. 

(2) And then each purchaser should be limited to 1,000 acres for at least five years. 

15. (1) One steer to the acre on irrigated lands ; one steer to five acres on uniiriga- 
ble lands. 

(2) All things being equal in Los Angeles and other parts, both places give equal 
results. 

16. Of cattle of various ages, about 60 head, as 12 to 15 should be marketable each 
year, giving $35 as value of each on the farm when marketable. • 

17. Owing to the fact that we are without water in our canals for seven months in 
the year, and that these cattle are mostly dependent on pnnips and windmills, cattle 
are but little raised here, so I cannot give statistics. 

18. With irrigation grass has increased twenty-fold ; without irrigation no altera- 
tion is perceptible. 

19. (1) Generally fence what they have deeds for, and sometimes unsurveyed land 
also where there is no natural fence" 



192 PUBLIC LANDS. 

(2) Yes. 

20. Difficult to say, as it depends on the owner. 

21. By pumps, and in a few cases by natural ponds, except when there is water in 
the ditches. 

22. Where both are confined to gras8*only, 1 beef to 10 or 12 sheep ; but where brush 
largely prevails, 1 cow or beef to 5 sheep. 

23. According to the management of the owner. If he has allowed sheep to eat 
the pasture too low and close, and kept it so, the grasses, artificial and natural, die 
out, especially those wild grasses which must seed each year, and which spring each 
rainy season from seed and run their lives out each season. 

24. Yes, if not fed too close ; but if overstocked the sheep will thrive while cattle 
starve. 

25. Cattle men keep sheep men away when they can for the above reason. 

26. About 10,000 sheep to 1,000 cattle, or even greater. Cattle seldom herded; 
sheep in bands from 500 to 3,000 or 4,000. 

27. In surveying lands and establishing counties, natural boundaries, such as a 
river or the summit of a range of mountains or hills, should if possible be the estab- 
lished limits by law. The division between Fresno and Tulare Counties ought to be 
King's River, whereas it is an arbitrary line, giving the whole of King's River over to 
each county in different parts of its line. It rises in Tulare, bends and goes into Fresno a 
mile or so, comes back a mile or so and runs a long way again in Tulare, goes into Fresno 
again three or four miles, and eventually empties in Tulare. Our people represented 
the matter through their senator and got the river recognized as the boundary, but 
interested parties secretly prevailed on the next senator to change it back again, which 
was done. Again, in our mining districts the county terminates half way down a 
mountain, and two adjoining claims, for no good reason, are in two different counties, 
and each claimant has to apply to a different county recorder and clerk, and to differ- 
ent supervisors, for privileges or services according to their necessities. One of the 
laws of the State is that the supervisors shall have the granting of privilege to take 
water from rivers in their respective counties. Thus men who took out canals on the 
Tulare side of King's River had to apply to Fresno board of supervisors. Again, a 
company applied to the Kern County board of supervisors for a charter to take water 
from Kern River ; but the bulk of water has its rise and drains from Tulare streams. 
Several farmers have taken the water out of the river up high, where it is in Tulare 
County, and when the Kern companies complain they are told that that water rising 
in Tulare and never having been in Kern, the Kern County supervisors have no juris- 
diction. Such things should be national law, and not left to every scheming man to 
arrange through his particular friend in the local legislature. 

As I understand the laws of pre-emption, when a man wishes for his deed he must 
pay to the local agent from $200 to $400 for the government. This is often difficult to 
do, as the settler generally sees rough and hard times during even his first five years, 
often and nearly always during the period of pre-emption, when the laws necessarily 
hamper his actions to a certain extent. Thus he goes to a money loaner, who unfor- 
tunately is not unfrequently indirectly the local agent himself, who finds the money at 
high rates, from 12 to 30 per cent, per annum : in return takes a mortgage on the land, 
and in numerous cases he eventually owns the land if he desires, and the man, thus 
defrauded indirectly through the rigidity of government demands, is once more turned 
adrift, with his homestead and timber-claim rights alone left him, and thoroughly dis- 
heartened besides. I would suggest partial payments, giving in return a conditional 
deed stipulating that within five years the whole be paid in or the first and subse- 
quent payments forfeited, the latter condition so as to prevent settlers from throwing 
the land exhausted in to the hands of government. This gives settlers an opportu- 
nity for some little freedom, without danger of forfeiture of title, and an opportunity 
to "be independent of the frontier capitalist. 

28. It is often impossible to find corners, because often the stock men pull them up 
where they wish to keep the range, hitherto unsettled on, for their cattle, hoping 
thereby to delay settlement, even if only a few months. I would suggest that at least 
all along the township lines a larger and more durable external monument be erected. 
The charcoal, when findable, is good enough, but the pegs get smashed by stock, or 
settlers' wagons, or animals digging, and in various ways. Nearly every settler here 
has had in his day to pay for the county or other surveyor to resurvey for him. 

TIMBER. 

1. Along the river banks and in the foot-hills and mountains plenty of timber. In 
this section the natural timber is oak, sycamore, willows, &c. 

2. (1) Principally Lombardy poplar, Carolina poplar, cottonwoods, blue and other 
gums, catalpa, and numerous others, more or less. 

(2) Best are poplars and gums; growth in spring, summer, and early fall. 

3. By lease only, returnable in ten years to the government conservator. The forest 
laws as practiced in Germany and India, varied sufficiently to meet the requirements 



PUBLIC LANDS. 193 

of our people, seem to rue the best arid most just when the claims of future genera- 
tions are considered. Taking into consideration the struggle which our frontier set- 
tlers generally have to make" a home, it would be hardly right to enhance the price of 
lumber by making mill owners pay heavily for the right to cut out the timber in the 
logging country, but a rental of $5 per acre would not be heavy on any mill man, or 
$3 where the lumber is such as to fetch but low rates in market. In order to enforce 
the laws and regulations it would seem that the civil-service system should be fol- 
lowed, because if a man who was elected by the people locally were to enforce the 
laws he would be objectionable to those whose interests he had to oppose, and they 
would leave no stone unturned to insure his not being re-elected. In India it is one 
of the finest departments of the government, and so long as the conservators do their 
duties they have nothing to fear. In going over those districts in this and other States 
one is struck with the wasteful way in which timber lands have been left after all the 
valuable timber has been cut out ; large spaces treeless, then several huddle;! in 
close proximity to each other. 

4. Certainly, if by the word "classify" you mean discrimination as to value of tim- 
ber growing, whether hard or soft woods, not in manner of disposition or size of tracts, 
leasing all by the acre, but in price only. 

5. Generally an irregular but vigorous growth of the same sorts as those trees that 
formerly held the ground. 

6. Forests catch fire from carelessness of hunters, desire on part of people who are 
pasturing to burn up old feed so that the coming year the feed may be clean and free from 
rubbish, desire on part of miners and others to clear underbrush, from fires of campers 
and Indians, blasting by miners, and carelessness of people generally, often widely 
extended ; very destructive, especially to young trees. Their occurrence can hardly 
be prevented, but their spread can be controlled by roads kept clear of brush and 
trees and used to take out the timbers. If the roads are quite straight and at inter- 
vals of say five miles apart, which would be necessary under a thorough system of 
supervision with branch roads also straight, these fires could often be subdued and in 
many cases die a natural death. 

7. Tax every railroad for every tie they buy; they would tax the producer in return, 
so that the weight would fall on the right shoulders, but the government would be 
spared the expense of hunting up the right parties. Legislation, I am afraid, would 
not reach the case, except at great cost. The depredation and waste is notorious, 
whether it be for railroad ties or building, mining, or agriculture, but it is more or 
less unavoidable. 

8. There are no restrictions practically. The man who fells a tree owns it unless the 
land be deeded. 

9. No ; because the land office is not subject to a system of civil service, and if a 
district land officer did his duty lie would not hold his office long. In many cases also 
they are not tried and trusty men. 



Testimony of Joseph Buss. 

The questions to which the following answers are given will be found by unfolding 
page . 

To the Public Land Commission : 

Gentlemen : The interrogatories submitted to me by the Commission, although some- 
what arduous, I will endeavor to answer to the best of my ability with the data I have 
at hand. 

1. Joseph Russ ; Ferndale, Humboldt County, California. 

2. I have been in this section about thirty years. 

3. I have acquired title to lands chiefly by purchasing from those who held United 
States patent. 

4. By observation. 

5. In pre-emption cases where there is no conflict the pre-emptor usually makes 
his proof as soon as the law will allow him; he then has to wait on the department at 
Washington for his patent from one to four years, unless he will send his duplicate 
receipt to some attorney in Washington with $25. In that event it will come in about 
six or eight months. The ways of the department are certainly mysterious in this par- 
ticular to most people. Where there is a couflict, and an appeal is taken from the de- 
cision of the local land office to the department at Washington, the decision is often 
deferred so long as to work, if not in effect an abrogation of the rights they may have 
acquired, certainly great injustice to the parties concerned. 

6. The land laws of the United States remind me very much of an eccentric rich 

13 L c 



194 PUBLIC LANDS. 

man who is willing to give his poor neighbors a good dinner, provided, however, that 
they will first swim across a river whose waters are not overly clean to obtain it. In 
my opinion the land laws should be so amended as to give every citizen who wishes 
the right to obtain title to 160 acres of land or more in the most direct way possible. 
Years of observation have forced upon me the conclusion that the present land law 
has been instrumental in making more men perjure themselves than all the other causes 
that operate upon men in new countries. In short, however well the intention of the 
law, it certainly operates as a reward for crime. 

7. The public lands in Humboldt County are grazing, mineral, and timber. Little 
if any agricultural land now belongs to the public domain. We have some small val- 
leys, but the most of the county is rather mountainous and better adapted to grazing than 
anything else. 

8. The several classes of lands can only be ascertained and their character fixed by 
an actual survey. Nothing short of this would be reliable. I am of the opinion that 
whenever a United States deputy surveys one or more townships it would be an easy 
matter for him to determine the character of the land ; but in order for the govern- 
ment to get honest work and an honest report, something that can be relied upon, it 
must first be honest with those they employ. Since the reduction in the price paid 
by the government for surveying land it is impossible to get an efficient survey with- 
out the people paying the deputy extra, because in this mountainous and wood coun- 
ty many townships cost from $400 to $(500 more to do the work well than the gov- 
ernment pays ; but if the government will deal fairly with their deputies, that is, 
pay them what it is worth to do the work, the information could be reliably obtained 
so far as concerns those townships that are yet to be surveyed. In regard to those 
that are already surveyed it seems to me that the county surveyor with some aid 
could easily give the character of the lands. 

9. I think I have answered this interrogatory in 8. 

10. As I have heretofore stated it is my opinion that the actual settler ought to be 
able to obtain title to lands in a more direct way than at present, and indeed it is the 
opinion of the great majority of men in new countries that the land should be sold 
to any one who wishes to purchase after it has been held for pre-emptors six months 
or a year. There is little doubt, however, but what it would be money in the Treas- 
ury if 160 acres was given to each actual settler at just the expense. of surveying the 
land, without compelling him to live on it five years. He would certainly do so if it 
is to his interest ; and if it is not, then anything that the government may do to com- 
pel him is simply injuring one of her own citizens, consequently herself. 

AGRICULTURAL. 

1. Our climate on the coast is very even ; we have neither extreme heat or extreme 
cold. 

2. Our rainy season commences in October and lasts until May. We have no snow 
on the coast, but it falls to a considerable depth in the interior. It does not, however, 
remain long on the ground, except in high altitudes. 

3. It is not necessary to irrigate in this county, and has therefore never been re- 
sorted to. ' 

12. About one-third of the land in the county is adapted to pasturage, one-sixth 
farming, and one-half is timber land. 

13. It might be practical, but it would require at least 640 acres to insure a family 
a living, and that too in the best of the grazing section. 

14. It is my best judgment that all grazing land should be put in the market for 
private entry without any limit as to quantity that each individual should pur- 
chase. 

15. It requires about 8 acres of pasturage land to keep one beef. The grazing lau/L 
in this section compares favorably with the best in the State, and in fact I am of the 
opinion that they are the best. 

10. From 75 to 100 head of cattle would support a small family, provided the mar- 
ket was good, otherwise it would require a much greater number. 

18. The growth of grass in this county has diminished. 

19. The cattle ranges are generally fenced in this county. 

20. I cannot see that it would make any material difference. 

21. We have an abundance of good water on all the ranges. 

22. About seven sheep are equal to one beef in grazing. 

23. The growth of grass has increased in sheep ranges where not fed too close. 

24. Sheep and cattle cannot be kept on the same range with profit. 

25. There is no conflict between sheep and cattle men in this county. 
20. We have in our coifnty about 15,000 cattle and 100,000 sheep. 

27. 1 would by all means suggest that the public lands be surveyed, and that every 
citizen be given' 160 acres where the land is agricultural, and 640 or more of grazing 
land, and this in the most direct way and at just the expense of surveying. 



PUBLIC LANDS. 195 

28. There certainly is much, trouble iu finding the corners of surveyed lands in this 
county, and in fact it is impossible in many instances because there are no corners. 
And. as I have already said, we can never have an efficient survey until the govern- 
ment' will pay what it is worth to do the work. A post at least 6 inches square should 
mark the corner of every section, and it should "be 2 feet* in the ground and 3 feet 
above the ground. This would enable i>oor men looking for lands to know where any 
given piece of land is without having to resort to a surveyor, as they now do. 

TIMBER LANDS. 

1. About one-half the land in the county is timber land. It consists of redwood, red 
fir or Oregon pine, spruce, cedar, white fir, hemlock, oak, and maple ; but the kinds 
used for manufacturing into lumber are redwood, spruce, and Oregon pine. 

2. No kind of timber is planted in this section ; it is not necessary. 

3. I would sell the timber lands to those who wished to manufacture it in such, 
quantities as would justify them in making the necessary outlay. The price should be 
$5 per acre for redwood, and $3 per acre for spruce and Oregon pine, This would not 
be too high for those who wished it for immediate use, but too high to buy on mere 
speculation. 

4. I think it would be well to divide the timber land into two classes so far as price 
is concerned. First class should constitute the redwood, and the valuation be $5 per 
acre ; second class pine, spruce, and fir, and the price be 83 per acre. The other tim- 
ber lands that are good only for wood should go into the agricultural class. 

5. There is a second growth of redwood, spruce, and pine, but it will come to no per- 
fection in one generation. 

6. We have no forest fires in this county that injure the timber in the least, in fact 
fire has no detrimental effect on redwood. It is well-nigh impossible to kill the stand- 
ing timber. 

7. There are no depredations upon the public lands in this county. 

8. "We have no local customs governing such cutting of timber. The habit does not 
exist. 

9. I think those officers are generally too far removed from the forests in order to 
exercise any beneficial supervision without the aid of local deputies. It seems to me 
that as long as we have local officers they are the proper ones with whom to lodge such 
jurisdiction. 

Eureka, October 20, 1879. 
My knowledge of lode and placer claims, and mining in general, is too limited to 
admit of advancing any opinion upon the subject. If what I have said shall prove of 
any value to the Commission I shall be well paid for my trouble. 
Eespectfully yours, 

JOSEPH RUSS. 



Testimony of A. A. Sargent, lawyer and miner, San Francisco, Calm 

Testimony of ex-Senator Sargent before the United States Land Commission : 

Question. What is your name, residence, and occupation ? — Answer. A. A. Sargent, 
San Francisco, Cal. ; occupation, lawyer and miner. 

Q. How long have you lived in California? — A. Thirty years. 

Q. Have you acquired or sought to acquire title to any of the public land of the 
United States ; and, if so, how or under what laws ? — A. I have, under the mining laws, 
title to a placer mining claim. 

Q. What additional means or opportunities have you had to learn the practical 
workings of the public land laws ? — A. My residence for most of the time mentioned 
has been in Nevada County, in the midst of a mixed mining and agricultural popula- 
tion, where questions as to both interests were constantly arising and referred to me 
as a lawyer or as a public man, and I had the conduct of much of the litigation that arose 
in consequence. Added to this I served six years in the House of Representatives and 
six in the Senate at Washington, and was in correspondence with thousands of my con- 
stituents all over the State on land questions, and I helped originate much of the legis- 
lation for the disposal of mining and other public lands which has been passed by Con- 
gress during the past ten years. 

Q. Have you observed any defects in the practical operations of the land laws which, 
in your opinion, ought to be remedied? If so, state fully such defects and any sug- 
gestions you may have to offer in tjie way of remedying them. — A. In California the 
conditions are peculiar, and a general laud system adapted to the older States works 
here to the disadvantage of the general government and settlers. For instance, it is a 



196 PUBLIC LANDS. 

good general rule that the public lands shall be sold in quantities not to exceed 160 
acres to actual settlers. But such a law consigns to perpetual barrenness the great 
stretch of desert lands in the Tulare Valley and lands similarly circumstanced. An 
actual settler would starve there. He would have to haul subsistence for himself and 
his cattle and even water to drink. To irrigate his piece of land — and he could do 
nothing without irrigation — he would have to build a canal miles in length, which his 
little patch would not justify. Some means must be taken to secure associated capi- 
tal. The land is fertile enough, and bears excellent crops with artificial irrigation. 
Congress passed a law relating to desert lands in California March 3, 1877, by which 
capitalists were induced to expend large sums of money in redeeming part of the Tulare 
Desert, with very beneficial results. One year after their operations commenced their 
fields were the only fertile spot in Southern California, from Lathrop to the Colorado 
Eiver. The operation of this beneficent law has been impeded in the Interior Depart- 
ment to such an extent that capitalists have been deterred from taking up and redeem- 
ing more land, of which there is an immense quantity of the same kind, and those who 
have embarked in the enterprise heretofore are denied title, though they have fulfilled 
all their duty under the law. Congress seems to have done its full duty, wisely and 
well, in providing a means of redeeming these deserts, but the mode of administering 
the law has defeated its design. This is a "defect in the practical application of the 
law" well worthy the attention of this Commission. 

Again, in regard to timber lands. The great timber belt of the Sierra Nevadas is 
admirably calculated to supply the wants of a vast population on this slope for lum- 
ber for dwellings, fencing, mining, &c. But to produce this lumber it. is necessary to 
use saw-mills, and the latter cannot be erected and run on 160 acres of land. The 
present law for the sale of timber lands is too restrictive in the amount allowed to one 
purchaser, and its machinery is too cumbrous. It would be well to allow a person 
to buy at least a section, and to buy on unsurveyed as well as surveyed lands. The 
job of surveying the Sierra Nevada Mountains is too formidable, while here and there 
are found patches of valuable timber which would be preserved from fires and depre- 
dations in private hands, and could be surveyed and segregated as sold or applied for, 
without regard to the rectangular system of surveys. 

There is another class of lands in California, viz, grazing lands, which ought not to 
be subjected to the pre-emption or homestead system, because the lands are not fertile 
enough to support life on limited areas. These lands are good for cattle or sheep 
ranges, and should be sold at a less price and in larger quantities than fertile lands. 

Q. In how large quantities ought grazing lands to be sold?— A. First-class pasture 
land requires from one to two acres to support a sheep, and from three to five acres 
are necessary to keep a steer. A man could not make a living off the increase of stock 
that a thousand acres would keep. I would sell, in five or ten thousand acre tracts, 
all lands fit only for grazing and at very low prices. Then I would compel cattle and 
sheep men to buy, or follow them up and enforce the payment of a round sum for every 
sheep or head of stock pastured on the public domain. I would first give a chance to 
buy at reasonable rates and in adequate quantities, and theu levy a toll on the ani- 
mals of those who refused to buy. This would protect the men who buy land and use 
it for grazing purposes from the dishonest advantage gained by others who pasture 
their stock on one or two hundred thousand acres of government land for which they 
pay nothing. It would make a market for grazing lands, to the advantage of the gov- 
ernment, and reduce to an honest industry a pursuit which now has many of the feat- 
ures of Arab life. 

Q. Is it not the fact that title has been obtained to both timber and grazing lands, 
under the pre-emption laws, under pretense that they are cultivable ?— A. Without 
doubt the title to both has been obtained by questionable oaths and sham improve- 
ments to a considerable extent. But this has been almost a necessity. It has been so 
less with grazing than with timber lauds. It ought not, of course, to be so at all ; but 
the government is as much at fault as the pretended settler or more so. If it wishes 
to dispose of its lands, as it does, it should provide a mode of sale adapted to the class 
of lands. The settler must have them — he must have timber and cattle ranges — bur 
the law provides no ready and practicable mode of obtaining them. Before the last 
Congress acted on the matter there was no law for the sale of timber land in Califor- 
nia. There was an opulence of timber all around us, guarded by savage laws against 
trespass, and no honest mode of acquiring a stick of it. Towns might burn down, 
farms be unfenced, and mines unworked for want of timber; the law was inflexible. 
What wonder that men tried to get the timber land by pretended settlement and pay- 
ing for it under the pre-eniption laws, though they know that the settlement and cul- 
tivation which they swore to was but a sham? Congress at last gave partial relief, 
but it is inadequate. The want of understanding of the subject in the other Sr.-i: 
the principal impediment to proper legislation. Care should, of course, be taki 
pr< vent the timber belt from passing into the hands of speculators, though that would 
be 'i lesser evil than keeping it locked up in the hands of the government, refusin 
sell, as it has for years past. 



PUBLIC LANDS. 197 

Q. Please state the conformation and physical character of ti>e public lands in your 
county and State, so far as known to you; and whether agricultural, pastoral, mineral, 
timber, or otherwise. — A. The surface of California is greatly diversified by mount- 
ains, hills, and valleys. It contains vast tracts of each kind of land named in the 
question, to which may be added well-defined desert lands, gaining their quality from 
the slight rainfall rather than from defect of constituents in the soil. The mineral 
lands are intermixed with agricultural lands in the foot-hills of the Sierra Nevada, and 
it is better as a general proposition, in legislating in reference to these mixed lands, to 
proceed upon the presumption that they are mineral rather than agricultural, so that 
a person applying to purchase lands in the mineral belt as agricultural should be re- 
quired to furnish proof, to the satisfaction of the land office, that it is more valuable 
for agriculture than for mining. 

Q. Examine the act of Congress prescribing the duties of this Commission, &c, and 
referring to your answer to the last interrogatory, state how, in your opinion, the gov- 
ernment can best ascertain and fix the character of the several classes of land named 
by you ; whether by a general rule, or by geographical divisions or otherwise ? — A. I 
do not see how a general rule can be made applicable. The boundaries of these vari- 
ous classes of lands can be arrived at without any very close survey. Suppose, for in- 
stance, all lands in the Sierras between 500 and 3,500 feet above the sea level were 
presumptively mineral lands, all above that altitude timber lands, the Tulare Valley 
and designated parts of the San Joaquin and other valleys desert, the coast range and. 
certain other hills grazing land, &c, &c, with power in the land office, on proper show- 
ing, to set aside the presumption and treat land in the named boundaries as of some 
other class — it seems to me that some such system as this would reach the peculiarities 
of this State. 

Q. State the system of land parceling surveys which, in your opinion, would be best 
adapted to the economic uses of these several classes of land ; giving yoar reasons and 
your practical acquaintance with the subject of surveys. — A. Mineral- land surveying 
cannot be done better than it is under the present system. Agricultural land, which 
should be disposed of in not exceeding quarter- section tracts, should be surveyed in 
the present mode, except in cases of isolated mountain valleys, where connection with 
regular meridian and base lines should not be required ; reference to naturai local mon- 
uments being sufficient for identification. Mere timber and grazing lands should be 
surveyed in large lots, and not sectionized. My reasons are that these proposed meth- 
ods seem best adapted to the various kinds of land ; but I am not a practical surveyor. 

Q. How far has water been taken up in your section, and for what purposes ? — A. My 
home for a great many years has been in Nevada County, in this State, an actively 
worked and productive mining region both in placer and quartz mines. In that county, 
as in the neighboring ones in the foot-hills, water is taken up in canals for placer-min- 
ing purposes. The amount of capital expended in canals and reservoirs is very great. 
The claims existing to water are of very early date, and the rights have been recog- 
nized by our State courts and legislature, by the United States Supreme Court, and by 
Congress. These rights cannot be modified by legislation. Elsewhere in the State 
there are numerous irrigating canals, the principal ones having been constructed under 
the desert- land legislation of Congress. Undoubtedly there will be a great many more 
constructed if due effect is given to that legislation. 

Q. What conflicts have arisen, if any, in relation to water rights? — A. Litigation 
over water rights was very common in the early history of this State, and much of the 
skill and learning of our supreme court was employed in devising and applying rules 
to meet the peculiar condition of things in this State in this regard. Such litigation 
has ceased, except in some few cases where there are disputes about facts of priority 
of location, amount of diversion, and such matters. The principles of law governing 
such cases were long since satisfactorily settled. Any good digest of California de- 
cisions will put the Commission in possession of full information on the subject. 

Q. How would you dispose of public timber lands ? State whether by sale, by lease, 
or otherwise. — A. By sale, certainly, and not by lease. The government ought not to 
keep the title to public lands, except such as it needs for its own purposes. It ought 
not to keep a host of agents to feed upon the Treasury and increase the number of 
office-holders. It should be the study of legislators to dimmish rather than increase 
this class. Leasing the timber lands terminates nothing. It may lead to irritations 
and frauds. The timber will be better preserved in private hands. But I would not 
recommend putting the lands up for sale at auction, or submitting them to li private 
entry." Selling to separate purchasers in section tracts or thereabouts would be, in 
my judgment, the best mode of (disposition. I would not classify timber lauds as to 
manner of disposition, price, or size of tracts. It makes too much detail. Uniformity 
is sufficient. 

Q What have you to say as to depredations upon the public timber, whether for 
the cutting of railroad ties, use for mineral, building, agricultural, or other purposes ? 
State the extent of such depredations, unnecessary waste occasioned thereby, and what, 
if any, legislation is necessary to limit or prevent such depredations. — A. Depredations 



198 PUBLIC LANDS. 

upon public timber lands have been carried on ever since this State was first settled. 
In a large part of the State the timber had to be cleared off to make a place for resi- 
dence and cultivation. In such regions it was the same as in the States east, where 
the native forests covered the land now occupied by improved farms, by villages, and 
cities. Men removed timber as a mode of settlement. Again, in all the mining regions 
lumber is necessary for mining. A miner must have timber to support his tunnels and 
drifts, for his flumes, &c. He must have logs to construct his cabin. Towns must be 
built, farms must be fenced, &c. As I have said, until recently there was no law to 
sell timber land (not susceptible of cultivation), and none for the sale of timber. Yet 
farms were necessarily cleared and fenced, towns and villages built, mining prosecuted. 
To take government timber for these uses was depredation ; but the government which 
provided no means for the honest acquisition of the timber could not complain of its 
citizens, whose necessities, rather than their inclinations, them made trespassers. Of 
course this system has been wasteful, and should be effectually stopped. A law for the 
sale of the timber lands in reasonable quantities would stop it effectually. 

Q. What experience have you had in mining and mine litigation ? — A. I have been 
engaged in placer and quartz mining most of the time for thirty years. As a lawyer 
in large practice I formerly had charge of many suits involving conflicting mining 
rights. I am more especially engaged in placer mining. 

Q. Within your practical experience are the existing mining laws, as to placer claims, 
defective, or otherwise ? If defective, state in what particulars ; having especial ref- 
erence to the facts of original location under local customs or laws ; the shape and 
size of such claims ; their occupancy and development ; the opportunities for consoli- 
dating two or more claims in one person by purchase ; what evidence of the chain of 
title is required ; what use is made of such claims other than actual working, if any : 
and what is the general character of the litigation relative to ihese placer claims. — 
A. I consider them excellent. The provision of the statute tbat dispenses with proof 
of original location and chain of title where the claims are ancient — have been held 
by the claimants and ancestors beyond the period prescribed by the statute of limita- 
tions — makes it possible to acquire title which any other rule would prevent. In early 
times, in this State, mining claims passed by delivery, there being no paper writing, 
in numberless cases, and such conveyai.ce was upheld by the conrts ; the old records, 
which were kept by miners, in their cabins, have long been lost or octroyed. The best 
improved claim in the State could not be patented on any showing that could be made 
under a more stringent rule. 

Some rule might be prescribed governing original locations to oe hereof ter made ; but 
it would be difficult to prescribe one that would operate equally in reference to devel- 
opment and working. So much depends, in placer mining, upon water, and the sea- 
sons are so uncertain, and water is so frequently scarce, that, unlike the case of quartz 
mining, regular or profitable work, work in good faith and not mere form or show of 
work, is often impossible for considerable periods of time. A claim may depend wholly 
on the rains for water, and get none during a dry season. If the law should require 
so much work on a mine every year, during that dry year it could not be obeyed, at least 
in good faith. 

There seems to me to be no objection to the consolidation of two or more claims in 
the hands of one person or company by purchase. Indeed this is often necessary for 
purposes of development. An individual or company may be willing to undertake the 
construction of a bed-rock tunnel, or long water ditch, for the mineral presumably in 
two or three claims, but not for that in one. The law should not hinder such enterprises. 

Q. Within your knowledge are titles obtained under the placer law for non-miueral 
lands ? And, if so, state instances. — A. I should say the practice is not extensive either 
way, but that, if either happens, mining land is more apt to be taken for agricultural 
land. It is sometimes a very close question whether land is more valuable for mining 
or farming. Its agricultural capacities lie on the surface, and can be seen by any one. 
The mining character is matter of development, which may not have taken place. 
Besides, as mining land costs twice as much as agricultural land, there would be no 
motive to procure it under the latter rather than the former character. 

Q. Within your knowledge has the placer law been used to procure title to lode 
claims? — A. No ; such cases must be of rare occurrence if they ever happen. 

Q. Do you know valuable placer lauds which arc un worked because the outlets are 
controlled by claimants under other Hum mineral titles? — A. I know tbat suits are 
pending, by persons owning farming lands along the banks of streams which serve as 
outlets for mining deposits, to prevent the further prosecution of hydraulic mining. • 
If such parties prevail in their actions and stop hydraulic mining, they will inflict a 
severe injury upon the prosperity of the State. The yield of gold from our mines 
comes very largely from hydraulic mining. This gold passes into the currents of 
trade and goes far toward maintaining the credit of the State and nation. Upon this 
industry several of the most prosperous counties of the State principally depend: The 
great system of canals, bringing water from the sources of supply in the Sierra Nevadas, 
.costing many millions of dollars, was created to feed this industry. Opposed to all 



PUBLIC LANDS. 199 

this is the claim of a few people along a part of Bear and Yuba Rivers, that their farms 
are injured by tailings. It is in fact a question between populous communities con- 
ducting a great industry and (not agriculture or the farmers of the State) a few 
farmers, which shall cease work. The miners are not intentionally wrong-doers. 
They have bought their mines in good faith, put on costly improvements, and are en- 
gaged in a useful industry. There is an obligation on them to do as little damage as 
possible, and this I know they desire to do. But I cannot believe it good public pol- 
icy to strangle this vast industry at the instance of a few persons who are inconven- 
ienced by it, many of whom located at a comparatively late day on the mining outlets 
knowing them to be such, or in other words " came to a nuisance," and whose total 
product would not be missed by the State if subtracted from its resources. On the 
other hand, statistics show that the hydraulic mines yield several millions of gold an- 
nually. What it means to subtract that from the business of the State need not be 
stated. The principal market of the farmers affected is with the hydraulic miners or those 
who depend on their trades, and if all the mines were stopped which are involved in 
this litigation, with their depending industries, the whole Bear, Feather, and Yuba 
Eivers region would perish from inanition. 

Q. Have the miners ever offered to make compensation for the injuries inflicted by 
them? — A. They offered a large sum to the city of Marysville to aid in protecting it 
from injury, and I doubt not would be glad to pay any reasonable sum which would 
be compensation and not blackmail. 

Q. What interest has the general government in this question ? — A. It has a vast in- 
terest. It is the owner of an immense area of mineral land, worth to it $2.50 per acre, 
which is continually being purchased of it, and means millions of dollars in its treasury. 

Q. Has it not the same interest in the sale of agricultural lands ? — A. True. But 
the amount of agricultural land so situated as to be affected by mining operations is 
extremely limited — not one acre to one hundred thousand of its unsold mineral lands. 
Another interest the government has in the prosecution of mining is to preserve its 
credit, which California gold has heretofore largely contributed to maintain, and will 
tend to do hereafter if still produced. 

Q. What can the government do to protect this interest ? — A. It is difficult to retrace 
lost ground. A stipulation should have been put into the agricultural land patents, issued 
for hinds situated like those on Bear River, that they should be subjected to the ease- 
me, r sof ;he mines above. The government could have better dispensed with the sale 
of the few thousands of acres on Bear River than lose the sale of its mining lands on 
Bear River and its tributaries, or for mining to be stopped on all of these. If it had 
sold, those who bought would do it with notice and could not now complain. That 
which it ought to have done before if. ought to do in future. Again, the government 
should apx>oint a commission to study this question of hydraulic miuing and drainage 
and determine if works cannot be constructed to carry off tailings and deposit them 
on the tule or swamp lands. Its great interest in its unsold mining lands would be 
adequate reason for its undertaking such work. 

Q. Does not the x>rosecution of placer mining wash away agricultural land, and thus 
do more harm than the production of gold from it does good ? — A. Placer mining land 
is rarely good for agriculture. Probably not one acre of it in fifty thousand would 
ever be cultivated. It is refuse land except for the golden harvest which it yields, 
which, however, often exceeds in amount, in a ready payment, all it would produce in 
an hundred years if good agricultural land. I do not undervalue agriculture. It is 
the basis of wealth, of course, and our State and the world is full of land for its ap- 
propriate and adequate prosecution. But I claim for the placer miner the usefulness 
of his work and his limited area of refuse land for its prosecution. 

Q. Is it not alleged that hydraulic mining injures the navigable streams of the State 
and shoals the bays? — A. Yes, it is so alleged, and the statement is important if true. 
The general government should take steps to verify the truth of such allegations. At 
present such statements rest on no proofs. I remember what is called the "Hog's 
Back" in the Sacramento River in 1850, and it was as much an obstruction to naviga- 
tion then as now. 1 have seen, a newspaper statement that the water in the channel 
of Suisun Bay is deeper than it formerly was, and the bar of San Francisco habor is 
apparently unaffected. The flats in the bays are developing without doubt ; but this 
happens everywhere, in civilized and uncivilized countries, and where there is and 
where there is not mining. The work is greatly hastened by man's agency, and the 
greatcause of the degradation of the earth's surface and rilling up water-ways is the stir- 
ring the soil by cultivation. But a rainfall of from 2 to 6 feet, like that on the S'ierra 
Nevadas, on steep hillsides, necessarily carries off and deposits below vast amounts of 
earthy matter. Old Kern River is full and crowning with silt, and the waterhas forced 
a new channel, yet no mining has ever been done on it or its tributaries. The Platte 
is another case of a similar character. The Potomac River, opi>osite Washington, is 
full of flats like those of Suisun Bay, where plowing lands, digging roads, and such 
works only are answerable. The mouth and bed of Saint John's River, Florida, and 
Columbia River, Oregon, are illustrations of the filling-up of great navigable waters 



200 PUBLIC LANDS. 

by the ordinary washings of nature. The same effects are observable in Boston, 
Charleston, and Savannah harbors, &c, where there are no hydraulic miners to rail 
at as the abominable cause! If the Commission will visit Pacheco in this State it will 
see large grain warehouses buried to the eaves, I think, by earthy matter sent down 
by the wash of land, largely arising from farming operations. Ought not the owners 
to get out an injunction to stay farming in the valley and hills above them ? All these 
causes hurt the navigable waters of the State, and the miner is not wholly or chiefly 
responsible. The great agricultural valleys of the State have been formed by debris 
from the mountains, and the process would still go on if there were no mining as it did 
thousands of years before the white man saw this region. 

Q. Does not the great mass of earth handled by the hydraulic miner and the greater 
grade given to the streams make his operations more injurious ? — A. The great mass of 
material that the miner handles stays at his dump or in the upper streams ; it is only 
the loamy stuff, discoloring matter, that travels far. When men talk about hills being 
hydraulicked into the valleys they are wild. Probably 90 per cent, of a gravel bed 
cannot be urged by water more than a short distance after it drops from a flume. The 
mass is bowlders, gravel, pipe-clay, and other heavy matter. This never reaches the 
valleys, and could not unless the grade could be increased toward 30 degrees. Ex- 
cept between Smartsville and Marysville, where the distance is short, the increase of 
grade cannot be over an inch or two per mile for a quarter of a century's work, which 
is insignificant ; but to speak of increase of grade of the mountain streams, having in 
view the lower bays or an»y effect on them, is idle. Filling in San Francisco Bay under 
authority of law, and so lessening its capacity to take in water to scour in and out 
and keep down the bar, is, in my judgment, more mischievous than the discolored water 
that reaches the bay from the mines. If this work of private gain and public stupid- 
ity goes on and damage ensues to the bar, the blame for this, as well as for the debris 
from agricultural work and from natural causes, will still be put upon the miner. 

Q. Calling your attention to the fact that under present laws an adverse claim, in 
proper form and seasonably filed, suspends the administration of the mineral laws by 
the United States land officers, and transfers the jurisdiction to the courts of law, 
both State and United States, — please state whether, in your opinion, the adjustment 
of controversies concerning mineral lands x>rior to issue of patent should not be left 
absolutely to the United States laud officers, in the same manner as contests under all 
other land laws? 

A. I think not. First, Congress will not give adequate force to the General Land 
Office, and the work of its mineral division is now. far behind. To add to its present 
work all the vast labor of reading the evidence and briefs or hearing arguments, and 
deciding controversies of conflicting claimants as to the title to mining claimants, 
would overwhelm it with business hopelessly, especially as applications for mining 
patents are constantly increasing. Second, many questions of face arising in such 
cases can be satisfactorily settled by juries only, under the instructions of able judges, 
after argument in open court. The interests involved are too great to be satisfactorily 
disposed of by a clerk of the department, with such legal experience and knowledge 
as a small salary can command ; to say nothing of the suspicious that would arise, 
however unjustly, of unfairness, corruption, or carelessness. Such matters are far bet- 
ter between the hands of a regular court of the vicinage. 

Q. Ought there not to be a limitation as to a possessory title under the miuerallaws ; 
and should not locators be compelled, on penalty of forfeiture, to acquire the title by 
purchase from the government within some reasonable time ? If so, what would be 
your idea of the time ? 

A. There should be no limitation of time, at any rate not yet. If all the miners in 
the United States were required to apply for their titles in one, two, or five years, they 
would do it little more than at present until the time approached, and would then 
block up the land offices with business that could not be cleared off in fifty years. 

There would be great opposition and prejudice against any such proposition. Such 
a project was introduced into Congress some five years ago, and was followed by ex- 
cited miners' meetings in the mining States and Territories, denouncing it and its pro- 
moters. 

The mining laws are, as a whole, popular and satisfactory. They are begiuniug to 
be understood, and miners are more or less availing themselves of the right to pur- 
chase. It would be injudicious, by radical changes, to produce dissatisfaction, and 
retard the process of transferring the title to their claims to the miners, and the price 
of them into the government coffers. t 

The work of developing mines is frequently slow and expensive. The claimants 
sometimes cannot ascertain for years — employed in hard and expensive labor — whether 
they wish to buy or not. To compel them to buy an undeveloped claim is to make 
mining business still more uncertain, and may lead to shifts, by ficticious abandon- 
ments, &c, to avoid an onerous law. 

In this matter I would earnestly recommend the Commission to "let well enough 
alone." 






PUBLIC LANDS. 201 

Q. With regard to quartz claims, what, if any, defects have you observed in the United 
States laws, their operation and administration? 

A. I think the laws for the location and purchase of lode claims are in a much more 
unsatisfactory condition than the provision relating to placer claims. Where the crop- 
pings of a ledge are not visible through the whole length of a claim, the miner may 
expend thousands, perhaps a hundred or two thousand dollars, in determining the 
course of the vein, only to find that his location embraces but a small part of it ; and 
some one who has not tpent a dollar may get the ledge by an adjoining location. I 
understand that the Supreme Court of the United States has just decided that where 
a ledge goes out of the surface lines of a claimant he has no right to follow it. This 
is, perhaps, a fair interpretation of the quartz laws ; but it suggests the need of amend- 
ment to avoid a great hardship and injustice to discovers. The old miners' law treated 
the subject better, and gave a locator so many feet from his starting point, in either 
direction, "following the ledge, with its spurs, dips, angles, and variations." This is 
common sense. It secured to the discoverer or developer of a ledge the full extent of 
his claim, no matter in what direction it ran under ground. It is often impossible to 
determine where the " apex" of a vein is, or its course, or the angle or direction of the 
dip, by the early workings, and therefore the intended rights of a discoverer are 
poorly defined and protected in locating a claim under existing laws. The impossi- 
bility of determining these things without extensive development, which must follow 
and not precede location, has led to much litigation and injustice. 

Q. Is there any other feature of mining locations that leads to litigation? 

A. Discoverers of veins, or their assigns, are sometimes burdened with litigation to 
defend their rights from subsequent locators in their immediate neighborhood, where 
the legal attack is directed to the portion of the dip of the lode which has passed be- 
yond the exterior lines of the surface tract. But a quartz mine would be of no value, 
in most cases, where the locator had not the legal right to follow his ledge down at 
any angle it might take and to any distance. Only claims of extraordinary richness 
could be worked when the possessors were confined within perpendicular side lines. 

Q. In view of the known variety and complexity of mineral deposits in rock in 
place, is it, or is it not, in your judgment, possible to retain in the United States min- 
eral laws a provision by which locators can follow the dip of their claims outside their 
side lines without provoking litigation? 

A. For the reason given, viz, that a claim would be usually valueless that could 
not be followed into the earth to any workable depth, it is essential to retain such a 
provision even if litigation does sometimes ensue. Such litigation is caused by ques- 
tions as to identity of ledges and not from abstruseness of principle. I am satisfied 
that the government, in dealing with these matters, must get nearer to rather than 
farther from / the old mining laws, which gave the locator his ledge wherever it dipped, 
or however it crooked. It was still a question of identity, often contested, but the 
law did as much as possible toward assuring a workable claim to the discoverer and 
his associates. 

Q. Would not all difficulties be obviated by making a quartz claim 1 ,500 feet square ? 
Would not that give the dip as far as a miner would wish to follow it ? — A. Such a 
feature in mining locations would be objectionable for many reasons. In many places, 
such as Austin, Nevada, Cottonwood Canon, Utah, and in parts of California, the dis- 
tinct mining claims and ledges are too close together to afford such space. .One man 
would own too many ledges. Laws must be uniform, and while such a provision might 
aptly apply to the case of a ledge having a broad extent of non-mineral land each 
side of it, it would make mischief in numberless cases, and not be applicable in them 
at all. I doubt if it would be safe to predicate that in ail cases where there are 700 
feet of non-mineral land each side of a ledge that the dip would not carry the lode off 
the claim. Sometimes the dip is forty-five degrees. I have known it greater. It will 
be observed where the dip would take the 3,000 feet level. I reiterate, the only safe 
rule is to let the miner follow the ledge wherever it goes, in direction or dip, without 
regard to surface ground. If that right is restricted miniug is made more hazardous 
and uncertain to the extent it is restricted. 

Q. Have you ever taken pari in organizing a local mining district ? If so, state 
fully where it was done : by how many parties, and whether necessarily actual miners 
or citizeus. What officers were elected, and their duties. What books of record 
provided, and their object ? — A. "I took part in organizing the quartz-mining district of 
Nevada County in 1852, at a meeting of the quartz miners of the county assembled at 
Nevada City, on published notice, and acted as secretary of the meeting. Some seventy 
persons were present, all of them interested in quartz mining. A code of laws was 
adopted, which has ever since been recognized by the miners, and often proved in and 
enforced by the courts. The county clerk of the county was made ex-officio mining 
recorder. He was required to keep* in his office a book of records, open for inspection, 
in which any person locating a quartz claim was required to have his notice recorded. 
This duty has been performed down to the present day, though some of the early 



202 PUBLIC LANDS. 

books of record were destroyed, with the county records, by a fire that burned the 
court-house. 

Q. State generally the mode of originally taking up and locating a mineral claim 
under mining customs, and the effect of a record of such location. — A. Locations were 
usually made by a number of persons, or by one person using the names of others, all 
of whom became tenants in common by such location. Location was made by setting 
stakes and putting up a written notice signed by the locators. Record was then made 
in the record book of the district, and work to a certain extent must be done, and con- 
tinued periodically, else the claim was " jumpable." All these conditions being com- 
plied with, the right of the locators was sustained by the courts and public opinion. 
The effect of [such] a " record " was to give notice to others, and to conserve the right 
of the locators to the number of feet legally claimed. 

Q. Is that record capable of subsequent amendment ; and, if so, how ?— A. It is, by 
subsequent notice posted and recorded, if no other right intervene, but not otherwise. 

Q. Within your knowledge, have mining titles been disturbed or litigated through 
fraudulent manipulation or destruction of these records ? If so, what security is there 
against such frauds ? — A. I do not think this difficulty has ever arisen. Inconvenience 
arises from the accidental loss or destruction of records, but not from fraudulent ma- 
nipulation of them, or, so far as I ever heard, from intentional destruction of them. 

Q. Calling your attention to the fact that a copy of the certificate of location, as 
certified by the local mining recorder, is the sole basis of the paper title for a mining 
claim, under existing law, and that compliance with the varying customs of innumer- 
able mining districts constitutes the preliminary acts upon such claims, state whether, 
in your opinion, all mining district laws, customs, and records could advantageously be 
abolished as to future local ions, and the initiation of record title be placed exclusively 
with the United States land officers. — A. The principal objection to making the reg- 
ister of the land office the mining recorder is the difficulty miners would have in ex- 
amining his records to ascertain what locations have been made. They could not travel 
such distances for such a purpose. The invulnerability of the records would be some 
compensation for this, but not adequate. Great care should be taken in abolishing 
" miners' rules and regulations." They contain a good deal of practical wisdom. The 
present law embodies some of them, of general application, and perhaps still more 
could be utilized. I should recommend this rather than their abolition. 

I should like to remark that what I have said about the inexpediency of compelling 
locators of placer claims, under penalty of forfeiture, to acquire title by purchase from 
the government within a limited time, applies with equal force to the locators of 
quartz claims. 



Testimony of James TV. Shanlclin, San Francisco, Cal, 

James W. Shanklin, State surveyor-general-elect of California, xesident in Oak- 
land, testified at San Francisco, October 8, 1879, as follows : 

I have lived in the State more than twenty-five years. 

Question. In what part of the State is agriculture possible without irrigation? — 
Answer. In that part of the State north of Monterey ; particularly the valleys and a 
portion of the foot-hills, and in the mountains. I consider that portion of the State 
poor for agriculture without irrigation south of that ; it does not have sufficient rain- 
fall. 

Q. You recognize the three classes of land— pasturage, irrigable, and timber. Now, 
won't you give us your idea of the best disposition to be made of the timber land, and 
what administrative system of disposing of it would be most advantageous to the 
State and tend best to the preservation of the timber ? — A. The chief object in deal- 
ing with timber lands at all, either on the part of the United States or the State, is 
their preservation from waste, and to allow such use as is necessary for the people of 
the State and nothing more. The question to bo determined is how this shall be 
accomplished. It can be accomplished in two ways : Either by the State under State 
control, or by the United States, through its officers especially appointed for that pur- 
pose and nothing else. Timber agents or foresters should be appointed. I do not 
think it can be protected in auy other way under our present system of government. 
If you make it an adjunct to another office, it will fall between the two and noth- 
ing will bo accomplished for its protection. I had something to do with that myself; 
for when I was register of this land office I had a good deal of work of that kind be- 
fore me and I undertook to stop it, and I did stop one large company that had their 
railroad and steamboat employed to transport to this market the government lumber, 
and so effectually stopped it that it broke up their railroad and their steamboat too ; 
but the department did not sustain me in it. Therefore, I say you must have a sep- 
arate department to attend to that exclusively. If it is attached to anything else, it 
will fall between. 






PUBLIC LANDS. 203 

Q. What is the source of the destruction of timber ? — A. By mills, fires, and by per- 
sons cutting off what they want for their own use and wasting the balance of the 
timber. 

Q. What ratio does the amount destroyed by fire bear to that cut by man?— A. I 
should say at least twice as much, at the present time. 

Q. Would not an organization of a corps of foresters or suitable officers for that 
purpose be an odious measure before the people? — A. Not at all; just the reverse. 

Q. Could jurors be found to convict men for taking the timber for their own use, 
notwithstanding that it was in contravention of the laws of the United States? — A. That 
is another question. When you appoint foresters, the men having charge in different 
localities where the timber is wanted will provide means whereby people can obtain 
what they really require. Then there is no inducement to steal the timber. That is 
the object in having foresters — not to prevent the use of timber, but to provide the 
means whereby a reasonable amount can be used under their supervision. In other 
words, allowing them to exercise such control as shall best subserve the interests of the 
people and of the United States. I will answer the second question in reference to the 
measure. There will be some men who will be law-breakers wherever you place them, 
but when you take away every inducement to break the law by giving them means 
whereby they can obtain what they require at a reasonable figure, I think they will 
be far less liable to break the law than under any other circumstances. 

Q. Just recall the number of settlements and mills in special localities where timber 
would have to be supplied to the growing condition of the country, and then give me, 
in a general way, your idea of the number of foresters which it will be necessary to* 
employ in the State for the purpose of properly protecting and disposing of it by such 
a plan. How many foresters would be necessary to protect and dispose of it ? — A. My 
opinion is that it would require one only for each township where timber is to be used. 
Where timber is not accessible and cannot be used there is no necessity for such a for- 
ester. The revenue to be collected by these men would pay three times over the ex- 
penses of the foresters. The timber belt here is about 30 miles by 500 miles ; that is, on 
the Sierra Nevada ; the coast belt would come very near that too. I don't think the 
timber of the State should be sold in tracts, either to mill companies or anybody else. 
I think it should be kept and -preserved for the people of the State. 

Q. Please give us your own idea about the extent of the two belts of timber. — A. I 
should say that the coast belt would average about 20 to 25 miles in width and by 100 to 
300 miles in length along the portion of the coast lying north of San Francisco. Then 
the Sierra Nevada belt would be about the same, or perhaps more; in some places it 
would be over 40 miles in width and in some places not over 20. It would have an 
average of about 30 miles in width and extend over the northern portion of the State 
down to the south of Sit, to the San Joaquin Valley, being about 450 miles long. In 
addition to that, between the two belts, there are many groves in the north. South 
there are none, except between Point Concepcion and San Bernardino. When I speak 
of the government not disposing of the timber lands in large quantities I do not intend 
by that to exclude settlements where cultivation is possible. After the removalof the 
timber there is left, as the result, land that is valuable for cultivation — good arable 
land after the timber is taken off. I do not object to its being sold to actual settlers, 

Q. The purpose of these foresters would be to care for andproteot the timber? — A. 
Yes, sir. • 

Q. The timber area is valuable for what purpose? — A. For its timber, but a portion 
of it would be valuable for fruit-growing and occasional small homes. The orchards 
would grow up to 3,000 feet, and the timber commences from 2,000 feet. At 2,000' 
feet it is the nut-pine. About 2,500 feet commences the yellow and the pitch-pine. 
Then this goes on up to the summit. The timber valuable for commercial purposes 
is not found to a great extent where these orchards could be established. 

Q. What objection would there be in permitting men to own homesteads of agri- 
cultural lands in the forest, providing that such men may obtain titles to small tracts 
of timber lands? — A. It would be like giving them a title to land in the moon. They 
could never use it, because of the distance of the timber from the agricultural land. 

Q. Is this difficult for any other reason than distance ? — A. Distance and cost of 
transportation. Transportation is very difficult, because the timber is on the mount- 
ains, and it would be necessary to construct roads or flumes to bring it from the mount- 
ains to the valleys, and this would be too expensive to the farmers, and they could not do 
it at all. The timber, to be utilized, must be utilized by persons connected with tim- 
ber enterprises. It can be by nobody else to any advantage. 

Q. Is it true that the present system of cutting the timber is wasteful ? — A. I con- 
sider it wasteful in every sense of the word, and detrimental to the State, because 
there is no care taken to preserve it. 

Q. What way is it wasteful ? — A. By stripping the land and burning up a great deal 
that could be used. If necessary and proper measures were immediately taken for 
its preservation and for compelling them to use it instead of destroying it, it would be 
well. They only use the best part of the tree and let the rest lie and-rot. 



204 PUBLIC LANDS. 

Q. What effect does the cutting of timber — taking and using the better portion and 
leaving on the ground the tops and wasted portion — what effect does that have on 
the fires? — A. It adds fuel for the fires and furnishes the best material for their 
spreading. 

Q. The cutting of timber is mainly by mills for the purpose of selling it, is it not? 
Do they cut beyond the market, as a rule ? — A. You would, think so if you asked the 
older men of the State. At the present time, in this State particularly, they cut 
sometimes far beyond the demands of the market, either for home consumption or for 
shipment abroad. 

Q. This timber is cut for use either by the State or people abroad. They send a 
great deal of it from this coast to the East. Does your scheme of foresters contem- 
plate a stopping of this use ? — A. No, sir ; only to keep it within a reasonable control 
and compel the entire use of the material, so far as it can be made available, for any 
purpose. 

Q. What is your property idea in regard to the forests? — A. It is this: to see that 
a reasonable amount should be used for the mills ; second, that there is no waste 
allowed and the surplus, after the lumber portion of the tree has been removed, 
utilized. 

Q. Would it be practicable for any timber mill to run by the designation of partic- 
ular trees by the foresters ? — A. Yes, sir. They themselves have to do it. They do not 
take the trees promiscuously. They have a man, to whom they give twice as much 
wages as to any other man, to select the trees and determine how they shall be felled. 
Every mill has its man especially for that purpose. 

Q. In engaging in the lumber business is it not attended with much expense in the 
construction of flumes, mills, &c. ? — A. Of course it is. 

Q. Is that expense warranted unless they have large tracts of land to cut from ? — 
A. I think it is, and I think there has been a mistaken policy on the part of lumber- 
men in securing large tracts of land. I have in my mind's eye now two or three com- 
panies (that have acquired large tracts of land) that are to-day insolvent, and that 
would not have been so had they done without these tracts of land. I know of one 
company that has over $50,000 laid out in lands obtained at cheap rates, aud upon 
which the taxes amount to a great deal. They would be far better off to-day if they 
had that money in their pockets. They could have just as much income without own- 
ing that land as they have by owning it. 

Q. Would you undertake the expense of putting up a saw-mill having only 160 
acres of timber land to cut from? — A. No, sir; I would sooner undertake it without 
any land except that the mill stood on 

Q. What area of timber land would you deem necessary for the successful oper- 
ation of a mill ? — A. I should think at least 2,000 acres would b*e required ; but wher- 
ever there is a mill put up without its owner possessing any timber in the vicinity of 
it, as the law now is and has been, settlers would take up 160 acres each, and being 
allowed to use the timber would supply the mill with timber at a less figure than the 
owner could get it by owning the land and employing his own men to cut it. I speak 
from experience. If there is a tract of timber extensive enough to supply a mill there 
is no necessity for restricting the mill men from cutting it, because settlers will settle 
around that mill on tracts large enough to supply all the demands of the mill. 

Q. In view of the facts that the marketable timber grows above three thousand 
feet, and that agricultural people can only live below that altitude, what would they 
be there for ? — A. The settler is there for the timber. 

Q. Then it is but another way of disposiug of the timber, is it not? — A. Each man 
has a right to take 160 acres, and it would be decidedly better for the mill company to 
have no land at all and purchase the timber of the settlers. 

Q. Your idea is it would be better to have it pass into the hands of individuals than 
for the mills to have it in large tracts? — A. I think it would be better. 

Q. How do you explain that ? — A. I explain it from what I have seen in connection 
with the lumber business and from my own knowledge. I have owned one myself for 
about six years, and I found that I could obtain timber for the mill at much less expense 
from those who lived on the land and furnished me with the logs than I could to own 
the land and furnish the teams and everything necessary to bring it to the mill. 

Q. Was not that owiug to the fact that you could not get the land from the gov- 
ernment and only through indirect and expensive ways? — A. No, sir ; I did not have 
to pay the government anything to take all the timber we wanted. 

Q. In every instance, whether by allowing each individual to purchase 1(50 acres or 
by allowing the purchase of land in large tracts— there is no distinction in particular — 
in every instance it is selling the timber lands for the purpose of marketing them, and 
the only distinction is you would divide it up among a larger number? — A. That is it; 
I would divide it up into small tracts, placing the purchasers of it under restrictions. 
The small owner would have no inducement to spoil his timber. He would protect 
it ; and when you have the ownership of the timber distributed among many it would 
be far safer than to have it held in the hands of a few. 



PUBLIC LANDS. 205 

Q. Would not monopolists, if they could not get title to the land or the right to cut 
timber for themselves, but were dependent upon other people coming and taking up 
the timber and selling it to them, would not such a state of affairs deter them from 
entering into these enterprises ? — A. That might be the case, sir. Sometimes it would 
be an advantage to the government to keep them out, and that would be of advantage 
to themselves and to the country. I do not think we should be allowed to export large 
amounts of lumber, and I do not think it would be a judicious law that would allow 
that to be done. 

Q. Is there not danger of monopoly by allowing the sale of timber at private en- 
try ? — A. Yes, sir ; there is some danger of monopoly, and especially on this coast, 
where monopolists flourish more than anywhere else in the United States. From the 
very beginning of this State it has been trammeled by a tendency to monopoly. 

Q. What is the source of that danger ? — A. Combinations of capitalists for the pur- 
pose of controlling the timber industry entirely. 

Q. If these lands were sold at $3 or $4 per acre, the moment they passed into private 
hands they would become subject to taxation. Now, would the holding of these lands 
in large bodies without use be profitable for capitalists ? — A. Yes, sir. 

Q. Could they make anything by it ?— A. That is another question. 

Q. Would they engage in enterprises where there are no sure gains ? — A. They do 
it just as men hold land. They think the chief wealth of the country must come from 
its lands, and hence they seek to obtain large bodies of it, and they hold it even where 
it embarrasses them. To-day I know of one mill company that has at least 20,000 
acres of land purchased as high as $5 per acre. They would be glad to sell it, because 
they are financially embarrassed ; but if they were not in these circumstances they 
would hold it. That land, in addition to other matters, helped to bring them into 
financial difficulties. 

Q. Would not that tend to force them to distribute this timber land? — A. It will 
ultimately do so. Some put it into the hands of other capitalists who are able to buy 
the whole together. It does not tend to distribute it to the small owners, but that 
large tract has to be bought by concentrated capital. This would keep it in the 
hands of monopolies, and when they find "that they can only make their property 
available by making still larger companies they will do so. 

Q. Did you ever know of a capitalist who bought timber land for the simple pur- 
pose of holding it, when he was not actually engaged in the mill business?— A. Yes, 
sir, I do ; in connection with lumbermen ; men who were capitalists, but who were not 
lumbermen, but held land in connection with men who were lumbermen. It was 
bought for the purpose of supplying the mills. It would not pay simply to hold the 
lands without using the timber. 

Q. Would not the vast area of timber land which you have described act as a prac- 
tical preventive to any actual monopoly by timber men ? — A. I think not at the pres- 
ent time. I think combinations could be formed which could control all the timber 
which was accessible. 

Q. Suppose the government sold the stumpage upon alternate blocks of land, re- 
serving each alternate block, would or would not that accomplish the purpose ?— A. 
That Would be much better than they are now doing. It would be supplying the 
present want and protecting the timber for the future. 

Q. What system for disposing of the irrigable lands would, in your judgment, most 
thoroughly secure their development, ownership, and utilization by actual settlers ? — 
A. My opinion is, the irrigable lands cannot be used by settlers to any great extent 
until such times as the means of irrigation are produced — until the main and distrib- 
uting ditches that are necessary to make the lands available for the support of fami- 
lies are constructed. The building of the ditches must precede the settlement of the 
land. They cannot settle upon the land and live there until such time as the ditches 
are put there. 

Q. Are these lands available to small settlements among men of small means ? — A. 
They are not at present, sir. They are only available by the use of aggregated cap- 
ital. They can not be used in any other way. The early law of this State contem- 
plated the above mode of doing it. The law was passed in 1854 ; it corresponded 
with the Mexican law on this subject, and that was this : in any country where irri- 
gation was necessary for the support of the people, that the people would be equally 
interested in making- ditches and the distribution of the water be regulated by over- 
seers or supervisors, and hence (like the old road law we had in the Eastern States 
where every man was compelled to go on the public work), regarding ditches as public 
work, a man had to pay his poll tax or his tax in proportion to the area of land 
that he held. They built the ditches and supported them in that way, .and the distribu- 
tion was then made under State law, without charge to those who had aided in build- 
ing the ditches. This was a systemof co-operative labor regulated by local laws. I 
listened yesterday with a great deal of interest to the allegation that the water rights 
had all been appropriated. I don't believe it. I believe that, under the law of this 
State, the water is under the control of the State ; that corporations and companies 



206 PUBLIC LANDS. 

may build as many ditches as they please, but they have acquired no right to the 
water. We have never tried to override the law in this respect and claim the appro- 
priation of it. But by law I think they never acquired it, and my reason for thinking 
that is this : that the early settlers of the State, kDowing that there was land that 
must be irrigated to make it available, as in Mexico, in order to secure a proper dis- 
tribution of the water and prevent its being grasped by corporations and individuals 
to the exclusion of others, a law was passed in 1854 devising these especial means of 
constructing the ditches and reserving to the State the control and distribution of the 
water; and these special laws, which named the counties wherein these privileges 
were to be used, have never been repealed to this day. 

Q. Do you mean to say that these companies who are taking out this water have 
not such an exclusive right to it that no other company could come and take the 
water? — A. Yes, sir, that is my opinion of it, by charter or without charter. 

Q. How about priority of right? — A. That gives nothing in the irrigable counties. 
In order to overcome that law in Tulare County, they tried to pass a law that would 
give them the control of the water. I refer to the law of May 15, 1854. Now, this law 
expressly claims the control of the water by the State and takes away the right of 
individuals to control the water. In Mexico they had two laws, and our State tried to 
preserve these two laws. When the miners began to leave the mountains where they 
had become accustomed to the mountain system of making ditches, and went to the 
valleys to make homes, knowing no other law, they carried that law into the valleys 
and practiced it. This is the only way they acquired the water. They did not acquire 
it by law. The law making a modification is the only one in Los Angeles — called the 
Bush law. I think if the United States attempted any system of irrigation, it would 
have nothing to do with buying up these companies. Under the new constitution of 
the State, which says the use of all water now appropriated or which may be hereafter 
appropriated for sale, rental, or distribution is expressly declared to be for public use 
and subject to the regulation and control of the State in a manner to be prescribed by 
law. No private control is allowed, and the old constitution was the same.. There 
are no vested rights in irrigable counties — as the San Joaquin County. This early 
system which grew out of the law of 1854 was practically admitted. After the Santa 
Ana companies were organized to build a ditch, supervisors were appointed for the 
distribution of the water, and these supervisors have always exercised that power. 
They know no other law, and need none. Immediately below San Bernardino — you 
have the testimony of Judge North that at Riverside they built two ditches, and 
there they have adopted a system of appropriation, and claim the right to the water 
because they have built the ditches ; and the result is that the two ditches take up all 
the water of that river and a great deal of the water runs to waste. In 1857 the 
people of Anaheim built a ditch and incorporated it under a general law, not under 
the special law. They took out the water, and since the Riverside ditches are in 
operation the people of Anaheim have not one-half the water that they used to have. 
Then, again, above Anaheim they built another large ditch and have taken out the 
water ; that also takes the water from the Anaheim people. On the north side of the 
river there is another ditch, in the building of which I broke myself up, and we take 
out a quantity of it. Now, if the rights of private corporations are to govern along 
that river, who has the right to it ? What will it end in ? For the peace and protec- 
tion of the people of the State it is necessary that it should be* under the control of 
the State, so far as the distribution is concerned. Let any combination or any people 
build as many ditches as they please, but let the State say how much water they shall 
use, and when they shall use it. 

Q. Has this question ever been decided? — A. No, sir; it has never been decided. 
All the early decisions of our courts relate to the uses of the water within the mining 
districts, and the real question for irrigable districts has never been tried. They have 
endeavored to control it by riparian ownership, but riparian ownership never meant 
diversion for irrigation. 

Q. Let me call your attention to the United States law of 1866. — A. That law is that 
the companies shall have the right to the water, subject to the rules and regulations 
of the State. It gives them no right to the water except as the State gives it to them. 
(Commissioner J. W. Powell read the law.) You see it is all subject to the State law, 
customs, &c, and the customs are a part of the law. 

Q. What effect would it have ou the agricultural industry of this State if the riparian 
rights under the common law were enforced ? — A. I do not think it w^uld do in this 
State. I do not think it should be applied to the sections of tho State that require 
irrigation, because it is too limited altogether. The man who owned the frontage 
along the river .would have all the rights, and those hack of that land would not have 
any ri^hfs; whereas if they were able to divert tho water they could have reasonable 
use or' it. 

Q. Would not the best remedy, so far as the federal government is concerned, be 
the repeal of the law of 1816 and leave that question to the State ? — A. I think it is that 
way nosv. I do not chink it gives them any vested rights, except as regulated by the 



PUBLIC LANDS. , 207 

State. It is the fault of the executive officers that the clause is inserted in their pat- 
ents. 

Q. Conceding that it is a question of construction, would it not be well to abolish 
that question of construction, and provide the patent should issue clean ? — A. I think 
it should be abolished, and I think that the officer has no business to put it in as long 
as the law does not compel hirn to do so. The patent would be trammeled, and the 
law sets aside these trammels when it comes to the contest. 

Q. What would be the effect of a system of disposing of the irrigable land, with the 
-condition that the right to the water necessary to their reclamation should inure to 
the land and pass with the title to the land ? — A. That is a question that would have 
"to be examined very carefully, for this reason : Suppose you take the land of a district 
in which the water, you say, can be used, and a person could go higher up on the 
stream and carry the water higher up and bring under cultivation more land that he 
could make use of for orchards, and thus reclaim as much more land as that you have 
set aside as being reclaimable. That can't be done. My idea in reference to the irri- 
gable land in the State is that a similar disposition should be made of it by the United 
'States as is made of the swamp lands ; that these irrigable lands should be put entirely 
under the control of the State law and not of the United States, so that the State, which 
is supposed to know what is best for the interest of the people, would adopt such a 
course as would be for their interest. The new constitution makes this provision, and 
I would adopt the same in reference to the irrigable lands of the State ; only reduce 
the quantity, for no reasonable sized farmer can use as much as this, if he has to irri- 
gate it. I think the quantity ought to be reduced. I think all the irrigable land of 
the State should be transferred to the State, and let it devise a system for the reclama- 
tion of the land and the distribution of the water. Let the United States send engi- 
neers into the field and determine what bodies of land can be irrigated from any par- 
ticular stream. The new constitution says that the lands that belong to this State, 
which are suitable for cultivation, can be granted only to actual settlers, and in quan- 
tities not to exceed 320 acres to each settler, under such conditions as shall be pre- 
scribed by the law. Now, suppose we say that the land belonging to the United 
States which can be utilized shall be granted only to actual settlers in such and such 
quantities. Then, after the ditches have been built by the State or by the combina- 
tion of the settlers that are on the land, let the settlers pay back to the State the cost 
of building the ditehes. I do not believe the United States ought to control the lands 
that are capable of irrigation and that are worthless without it. I think they should 
he in the hands of the State. 

Q. Is not your main objection to the application of the common law, really, that it 
would exclude the back lands from the use of the water ? — A. That is it exactly. It 
-excludes them from the use of the water. 

Q. Suppose the United States reserved the right to the water on every alternate 
section ; would not that remove the difficulty ? — A. Not if you give the land along the 
stream riparian rights — the exclusive use of the water. This riparian law and riparian 
ownership is the use of it by a man for the length of his front, and to the channel, and 
he has the right to the exclusive use of that water. Suppose the Riverside company 
to have a riparian right ; what becomes of the people below them, if they use all the 
water? 

Q. If you apply the common law principle, do not you protect all the back country ? — 
A. If you reserve a strip on each side, then you do away with riparian rights. The 
Mexican law is, in my opinion, the only good, sensible law that there is. That reserves 
the distribution of the water. 

Q. I am contemplating, under the application of the common-law principle, to re- 
serve a belt of land — every alternate quarter section — to the government. Would not 
that enable the back country to have a supply of water ? Would it not answer the 
purpose of an easement for the back land? — A. That would do it, provided you did 
not give the entire control of it to the owners along the stream. 

Q. If a system of that kind could be adopted, would it not answer the purpose ? — / i* 
.A. Yes, it would do that. I do not believe in allowing the water rights of this State>| ■ 
to go into the hands of any corporation or company, to the exclusion of every one else. * 

Q. Would a man be willing to make improvements on his land unless he was assured 
that he would have a perfect title to it ? In order that the proper improvements should 
progress, a man must have some certainty that he could continue there and make it a 
home. Now, under these circumstances, would it not be beneficial if, by some process 
or other, the right to the water was made to inure to the land, so that by no state of 
circumstances thereafter could a man be deprived of the use of his water? — A. When- 
ever you build a ditch in connection with the land, for the purpose of using it with 
the land, the law should not allow any subsequent diversion in any other way. At 
-the same time, it should not give to that one man the entire use of the water ; others 
should be allowed to use it also. All reasonable security should be given to a man in 
the enjoyment and use of the water ; yet unseen considerations might sometimes arise 
-where it would be necessary to divert his water for the public good. Therefore, the 



208 PUBLIC LANDS. 

stress of the law should be to protect the man ; but, over and above all, the public in- 
terest must be first considered. It would not be well to make a condition of things in 
regard to the water and the land which the law could not reach. My idea is that if 
the water was preserved until such tioie as it was needed, there would be sufficient to 
supply all wants. Our water- sheds are so abrupt that it flows off rapidly ; but if you 
could retain it for four or five months there would be ample for all the irrigable lands 
in the State. I think the irrigable lands would be greatly increased by construction 
of reservoirs. Go into the southern part of this State, where the lands are irrigated 
by artesian wells. You will find reservoirs on every one of these land tracts, and they 
store the water there, instead of using it all the time, and thus they always have the 
water to use when they want it. 

Q. What do you think of the pasturage lands ? — A. They have been a source of a 
great deal of trouble in this country between the cattle men and the sheep men. In 
that portion of this country south of Monterey the grass, on account of the litte rain- 
fall, is not abundant, and hence it takes a large area to sustain an animal, and in pro- 
portion to the area that is necessary to sustain one animal you must increase the 
quantity. Ordinarily, in order to justify a man giving his time aud attention to the 
keeping of stock, it is necessary to increase the area in proportion to the cattle he has. 
One hundred and sixty acres of ordinary pasturage land in this State, south of Mon- 
terey, would not do. No man could take 160 acres of ordinary pasturage land and 
support his family, or do auything toward it ; hence, if you wanted to divide the tracts 
into pasturage districts, you must give even the poor man a much larger tract than 
you do in the Eastern States, where they have plenty of grass. The grasses here are 
not like those in the Eastern States. We have no grasses from the sod. They grow 
from the seed ; they are annuals ; and whenever the seed is prevented from falling, as 
it has been to -a great extent from excessive pasturage for the past few years, we have 
no grass, or comparatively little to what there was in the early days. If we had rains 
enough to make a sod, a less area would be necessary for the support of the stock. 
The clover has disappeared and the wild oats have almost done so, aud the cattle go 
over a range and tramp it hard, and that must necessarily decrease the grass from year 
to year. I do not think that, taking the ordinarily good parts of this State, less than 
1,000 acres would be worth a cent to a man, and from that I would give him up to 5,000 
acres. In this State, on the ordinary pasturage lands, it will take 5 acres to support 
one animal. A head of beef ready for the market is worth from $14 to $20. They are 
not worth anything until they are four years old. A man in this State who has 250 
head of cattle can easily send 25 a year to the market, and at 5 acres to the head that 
would be more than 1,000 acres. I would offer about 5,000 acres even for a poor man. 
That is as little as he could make a good living for his family off of. 



Testimony of O. B. Siiger, San Joaquin, California. 

O. B. Stiger, of San Joaquin, Cal., October 24, made the following statement : 

I have lived in the State since 1849. I am familiar with the timber industries so far 
as this section of the country is concerned in Yuba Placer, Sutter County. 

Question. What is the condition of the timber as found, here ? — Answer. We have 
the heavy sugar-pine and the yellow-pine timber. 

Q. Is the region of country where the timber grows of any value for agricultural 
purposes ? — A. They are of very little value for agricultural purposes ; it is mostly 
mountainous. There are valleys that would be good for agricultural purposes but the 
larger portion of it is too mountainous. 

Q. Is the timber being destroyed ? — A. Yes ; very extensively. 

Q. What are the chief sources of destruction ? — A. The lumbering business. 

Q. Is there much waste in the business ? — A. Yes ; considerable. A great many large 
trees have been felled and not utilized after they have been cut down, and allowed to 
go to waste. 

Q. Is there much destruction by fire If — A. Yes ; there is a great deal of destruction 
by fire and waste. Year after year a great deal of the timber have been thus destroyed. 

Q. What effect does the cutting of the timber and leaving it lie on the ground have 
on fires ?— A. It is a feeder for the fires ; that the trunks of the trees that have died will 
increase the fires. 

Q. Do you think the fires spread in regions that have been cut more than in regions 
that have not been cut? — A. Yes; vastly more. 

Q. What system of disposing of this timber would you suggest that would conduce 
to its protection and still leave the timber available for industrial purposes?— A. I 
would suggest a law of Congress to prevent any person from cutting timber on the 
public lands at all; I do not know any other mode by which you can protect it. If 
people arc allowed to go and chop down frees at will fchia destruction of the timber 
land will go on ; as there is no one planting timber around here, it will all be destroyed. 



PUBLIC LANDS. 209 

Q. Could such a law be enforced?— A. Yes; I think such a law could be enforced 
here. I think a man could be indicted, but it is impossible to tell whether he would 
be convicted. Many complain because where the jury ought to convict they do not 
do so. 

Q. Would the sentiment of the people then be against the timber cutters? — A. I 
think the feeling is the other way. I think it would be a dead letter unless it was 
enforced by persons authorized by the general government to enforce the laws. I 
think the juries would acquit them every time. The sentiment of the people is so 
against protecting the timber that I don't know but what it would be a dead letter. 

Q. What would be the effect of putting the timber lands in private ownership ? — 
A. It would have a tendency to protect the timber. They would only take so much 
of the timber as would answer for their private purposes ; they would then protect it. 

Q. If the timber was put into the market would it be taken up ? — A. I think it 
would wherever it can be got at for lumbering purposes. In large portions of this 
section of the country the timber has been taken off entirely. There is very little left 
standing here. We have had a great many saw-mills in the neighborhood, and they 
have taken off all the timber for lumbering purposes. 

Q. Are you familiar to some extent with the belt of country which has been reserved 
as mineral? — A. Yes; I am pretty well acquainted with that section that has been 
reserved. 

Q. What, in your opinion, does the effect of reserving that land have on the agri- 
cultural and mineral industries ? — A. I think the effect it has had was to compel a 
desire to take up agricultural land. A person then does better for agricultural than 
for mineral purposes. If it were not so, large portions of the land would not be 
taken up of agricultural land which is mineral. I think it has been a benefit to the 
mineral section of the country, and I think it would be beneficial in the future to 
keep it so. The obstruction to the prosecution of agricultural enterprises is less than 
the injury which would be to the mining enterprises. I think if you took off that 
restriction to require the miners to prove that there was mineral on the land, large 
portions of the country would be taken up of the agricultural land that was mineral. 
I think it would be very difficult to prove it mineral ; as it is now, agriculturists can- 
not determine the character of this line. I think it best to /leave the matter as it is. 
I think it would be a good idea to let it be taken up for agricultural or mineral pur- 
poses, making the price the same. I think it would be a good idea to put the land 
all at an equal price, and let the agriculturists or miners come in and take such land 
either as agricultural or mineral land. It would then require no proof as to its agri- 
cultural or mineral character. 

Q. State such facts as you are familiar with relating to debi-is question.— A. The 
mining industries began here when first I came into the country in 1849, and there 
was very little agriculture here at that time. It was chiefly going on in the valleys 
below this belt of coast that is being washed by the hydraulic process. I was among 
the first settlers in the town of Marysville. I was there in 1849. There was then no 
farming at any place except at " Hop Farm." In that portion near Yuba City, in Sut- 
ter County, there was no agricultural work going on at that time. Hydraulic mining 
was known as early as 1853 and 1860. They were working extensively. In these val- 
leys, where hydraulic mining has been in progress, they commenced agriculture in 1852 
and 1853. 1 was a resident at Marysville when they commenced sowing wheat and 
grain in Sutter County. By 1860 there was considerable agriculture developed. The 
two industries have grown up together. I came to reside at this place in 1853, and 
they were working hydraulic mines here then. Since 1860 large quantities of water 
have been used. 

Q. To what extent does this hydraulic mining injure agricultural land? — A. I know 
but little of the land and the injury received along the rivers. It has covered a very 
large extent of country on the Bear Eiver, in the neighborhood of Marysville, and that 
large portion of country which lies on the south side of Yuba Eiver has been entirely 
destroyed. 

Q. How large an area is that ? — A. I think about the distance of 14 miles from Yuba 
River south, and extending along Yuba River 12 miles, a very thick deposit has been 
made there. Where the Yuba River channel was there is no channel there now. It 
was mostly sand, with a very little gravel, that we called " slickens." That portion 
of land lying next to the Feather River, I noticed, is not covered with dSlris. 

Q. At what season of the year are these slickens carried on the land ? — A. When 
they have freshets in the winter season. When the river is very high these slickens 
are then carried down. The slickens is held in solution, and is carried down and de- 
posited, and then it is baked dry, and it is then called "slickens." 

Q. Is there any possibility of determining what is slickens, what is only wash of 
the streams from the country around ? — A. I suppose you could only tell by the color 
of the water. I have seen the rivers when they were thickened by the wash from the 
surface, and I think by the color of the water you can tell the difference. 

Q. To what extent is the country being washed due to the construction of roads, 

14 L c 



210 PUBLIC LANDS. 

plowing of the fields, &c. ? — A. That would aid some ; but I do not think it would be 
aiding very materially to it. The agricultural works in this section of the country are 
so sparse that I do not think the plowing of the land has much to do with it. 

Q. Can anything be done with this material? — A. I think the slickens, when it has 
passed upon the land, is beneficial to the land. If ycu keep the rocks and sand from 
coming upon the agricultural land, the slickens are beneficial to it when it comes on 
the land alone. It is only in time of freshets that grayel and sand is carried down on 
it to the land. 

Q. Can the gravel and sand be disposed of ? — A. I think it can be, and I think there 
is a process that will prevent it from going on the farming land. I have an idea 
which I think would protect it. I have found in passing over the country that a sys- 
tem might be arranged so as to protect the agricultural land from the debris. I men- 
tioned it to Professor Van Schmidt when he was here and he thought it a good idea. 
My plan is to have the land condemned by the State for miles this side of Marysville ; 
then construct this side of Marysville a row of pilings and catch the debris there ; 
then construct a system of ditches and carry the slickens off into some of the marsh 
lands. 

Q. To what extent does land belong to the government ? — A. I think a good deal 
of it belongs to the government, and much of it belongs to the railroad company, and 
some of it is in private hands. Condemn that which is in private hands and pay for 
it, and construct this system of piling, and I think there would be money in there to 
run these mines for fifty years. The only difficulty in the way is in regard to Sm arts- 
ville, whether it would give them enough room for dumping. That is the best section 
for mining in the country. 

Q. Would not the government be compelled to condemn that land under "mining 
domain." — A. They can take it under that principle. They can have the value of the 
land appraised and ascertain its value. 

Q. Is it not generally allowed by the courts that under the exercise of the "mining 
domain" it can be done for public purposes altogether?— A. Yes. 

Q. Could this be considered as a public purpose ? — A. That could be developed. 

Q. Would it be so considered ? — A. Perhaps not ; I think it doubtful. 

Q. Is there land enough belonging to the government for reserving for that pur- 
pose of farm and dumping ground in these mines ? — A. Yes, there is land enough be- 
longing to the government if it could be had for that purpose ; but it is intermixed 
with private land, and I do not think it would be available. 

Q. Have you any means of estimating the quantity of material carried down an- 
nually ?— A. No, sir. 

Q. Your opinion is, then, of the debris which is carried down, that by far a greater 
portion of it comes from the hydraulic works ? — A. That is my opinion. I have reached 
that conclusion from my knowledge of the channels of the' rivers through which the 
debris passes. I have seen the banks of the Yuba River, on the Marysville side, when 
they were 40 or 50 feet high, and it is almost filled up now with debris. 

Q. Is there any great proportion of the coarse debris passing down in flood times ? — 
A. No, sir ; I think not. The gravel and sediment remain in the rivers, but consider- 
able sand passes down. A large quantity of the sediment remains in the river beds. 
It is mostly sand and light gravel that passes down. 

Q. In case this land which is now classed as mineral land was sold by the govern- 
ment, how large an amount would you allow a person or corporation to take up ? — 
A. Tp any individual I would not sell a larger proportion than 40 acres. If it was a 
corporation I would sell in proportion to the number of individuals composing that 
corporation. I do not think any one man ought to enter more than 40 acres of mineral 
land. 

Q. How about the agricultural land ? — A. I would sell the agricultural land in 320 
acres of the tracts that are in the mountains here. 

Q. What effect does this reservation which the government makes on all the min- 
eral in the land have upon the title of the person who acquires agricultural land, in 
proving its non-mineral character ? — A. I do not think it has interfered at all. I have 
never known a case where a man who obtained his patent to land for agricultural 
purposes was ever disturbed. I do not know of a case where two persons claimed the 
land, one for agricultural and the other for mining purposes. I know of only one case 
where the land located as land for agricultural purposes, who made application to the 
government for a patent for a homestead, and afterwards went to work for the pur- 
pose of ascertaining whether there was any mineral on it, because he could not make 
anything on it as agricultural land and wanted to try and prove it mineral land, and 
thus cheat his creditors, as he had a mortgage on it. I do not know of a case where 
the title has been acquired as agricultural land, and no other persons have gone in and 
tried to obtain a right to the land as mineral land. 

Q. Does this practice of reserving the rights of mines upon land which may have 
been patented as agricultural laud have a tendency to weaken the title ? — A. I think 
they do. I know of a case which I could cite, and where it has injured the owner of 



PUBLIC LANDS. 211 

the land because of the reservation. I think it has that effect. I think I can point 
out land where the title has been acquired for agricultural, and if they attempted to 
sell it to-day persons who wanted to purchase it would be fearful of doing so on account 
of this reservation, because it is possible that there is mineral upon that land. 

Q. Have you ever known any cases of conflict between the owners of land and per- 
sons or corporations who desire to run ditches across them? — A. Yes: I have known 
cases of that kind where there has been difficulty growing out of the fact that persons 
claimed it for agricultural purposes. 

Q. Can any compensation be claimed for that right of way ? — A. They claimed it, 
but I have never known a case that has ever been tried in the courts in the matter of 
the right of way. I think Congress passed a law, and they generally settle in courts 
with that law of Congress. There is very little litigation on such subjects in our 
courts ; the matter is generally arranged by proving in the right of way. There has been 
some difficulties, however, growing out of such matters. Any reasonable corporation 
would much prefer to compensate a person for his right of way than undertake to ride 
over him rough-shod, because the ditch owners are sometimes troubled by bad men 
cutting ditches. 

Q. Suppose the timber land was open for sale, who do you think would buy it ? — A. 
Mill owners. 

Q. Practically, at present don't mill owners prefer to buy their logs to owning any 
land ? — A. Yes ; they prefer selling them in preference to buying them, or get somebody 
to sell them for them. A man will go and enter a quarter section of land, a mill owner 
will buy the timber of him, and as soon as the timber is taken off the land, is valueless; 
the man will not pay for it, he just enters it. That is the way they sell it. Hundreds 
of acres of land within a radius of ten miles of this spot have had all the timber taken 
off the land and never paid for. 

Q. Would there be any improvement if the land was open for private entry % — A. 
Yes ; that would prevent a man from taking the land, and would compel him to pay for 
it, and will protect timber. 

Q. Will it not require an army of men to enforce any such, law ? — A. I do not know. 
Uncle Sam is very strong, and if he had some such law on the subject, I think it would 
help matters. 

Q. Suppose you were to put this timber land in the market, what would you do 
about mineral rights ? — A. Men would buy land for timber purposes and thus acquire 
title to a great body of mineral land. I propose that the government shall put the 
mineral land, as well as the other land, at the same price and let them purchase it for 
any purpose they please. 

Q. Then a man might get title to the mineral land ; and would it not be an impedi- 
ment to the prospecting and developing mines ? — A. I would limit the mineral land 
to forty acres to any one person. If a corporation was formed for mining purposes, I 
would let the timber go with the land that they occupy for that purpose. A large 
portion of the land is not mineral land here. There is only a belt of mineral land 
that runs through here, starting from French Corral and extending up to the Sierras. 

Q. Can quartz mines be found anywhere in the Sierras ? — A. I know very little 
about quartz mines. We have no paying mines here. 

Q. Suppose in the heavily timbered country, which is valuable for timbering pur- 
poses (you say it is necessary to sell that land to mill men, as they now do, they must 
allow them to take a large quantity of it), what effect would the reserving of the sub- 
terranean rights have, giving them title only to the surface. May a man who wished 
to engagein quartz mining do so on condition that he should pay any damage that he 
had done to the agriculturist who had the surface right ?— A. For quartz mining that 
would answer very well. You could sell it then for timber purposes and for quartz 
purposes, but I do not think it would do for hydraulic mining at all. 

Q. I was speaking of the quartz, not of the hydraulic mines. — A. Yes ; the disposing 
of the surface, leaving the quartz open for the miners, I think would work admirably. 
I would make the title to the surface complete and give the miners an opportunity to 
work the subterranean rights. The miners would, of course, have to pay for the 
damage done to the agriculturists. 



Testimony of B. B. Spillman, Yuba City, Cal. 

Marysvllle, October 28, 1879. 

B. B. Spillman, of Yuba City, Cal., made the following statement : 

I have lived here 28 years. 

Question. You are of course then familiar with this question of the spreading of the 
debris f — Answer. Yes, sir. I have lived in Sutter County twenty-eight years and knew 
these rivers when the water was all clear and had high banks. I have known since 



212 PUBLIC LANDS. 

hydraulic mining has been used their filling up and to have no banks and their over- 
flowing and destroying the land. 

Q. When did this commence — this change ?— A. This change commenced about 1860. 
It was very perceptible at that time and has been increasing ever since. 

Q. What is the effect of this on the Feather Eiver country? — A. You mean west of 
Feather Eiver ? 

Q. Yes. — A. You mean below the mouth of the Yuba River. The result is from this 
filling up that did this. The land lying anywhere adjacent to the stream is in a great 
measure liable to be lost, and that very soon. 

Q. Is the debris ever carried across Feather Eiver? — A. I do not know. I have not 
been there lately, but the river has no banks, but relies on the levee to keep the water 
out. If the water comes on the land it renders it unfit for cultivation. The land lies 
flat and the water will not go off' in time to produce crops. Above here Feather Eiver 
overflowed the land last year from the fact that there was no discharge for the water, 
because it was filled up so. The water backs up above the levee and runs on the land 
and injures it. This land never had any water on it before. It is all through there 
being no discharge for the water. They fill up so below it increases the water above. 
It is getting worse every year. 

Q. Are the citizens abandoning their farms ? — A. They are not abandoning them, 
but I think some of them want to sell out. I look upon the land as being injured 
materially. The levees are very expensive and unreliable, and without sufficient pro- 
tection. By levees alone this land cannot be cultivated. It is only a question of 
time, in my judgment, whether the levees will be sufficient to control the water and if 
it continues to fill up. 

Q. Have you any idea of the approximate amount of land that is overflowed by rea- 
son of the damming of the waters of the Feather by the Yuba Eiver ? — A. I cannot 
give any correct statement of that, because I am not in possession of the facts, but it 
is very large. The extent of the lands on the Yuba is very large. 

Q. Does it affect many farms ?— 'A. Yes. Many farms are totally destroyed on the 
Yuba Elver, and many on the Feather Eiver also. 

Q. How many ?— A. I don't know how many, but many thousand acres of land are 
destroyed. The mos»t valuable land in this State is now nothing but a lake. It cannot 
be cultivated because it is covered up with sand upon which willows are growing. 
Every year the water is in among the willows. A large body of land opposite and 
south of here, and the finest I know of in the State, is totally destroyed. 

Q. Are you acquainted with the Yuba Eiver Valley? — A. Yes, sir; I first resided in 
this county. 

Q. In what other ways is land damaged on Feather Eiver? — A. The damage by the 
damming is in various ways. One is land owners now have to be heavily taxed to 
build levees, whereas the people did not have to pay for them in former times. They 
pay heavily for this alone and while they are damaged all the time it thus reduces the 
value of lands. It seems to me that it is only a question of time when they will have 
to be abandoned unless there is a remedy applied in some way. 

Q. What remedy have you to suggest? — A. Only to stop the putting of the debris in 
the rivers and try and scour them out. I think the rivers would gradually carry out 
the suppression of the debris that is now in them and they would in time have a deeper 
channel, but if this debris continues to come in I have no hopes at all. There is a large 
body of land lying south and west of Yuba City upon which money has been expended 
in its improvement, and I think if this thing continues it will be a total loss. That is 
my judgment from observation in the past. 



Testimony of Sampson Thomas, of San Joaquin, Cal. 

Sampson Thomas, of San Joaquin, October 24, made the following statement : 

Question. How long have you lived here ? — Answer. I came here in 1859. 

Q. Are you familiar with hydraulic mining?— A. Yes, sir. 

Q. To what extent do you think the agricultural lands are being injured by hydrau- 
lic mining ? — A. I do not know ; I have not been in the lower country much. I sup- 
pose they have been injured some, but not to the extent that they claim down there. 

Q. Are you familiar with the settlements in this country ? — A. Some little. 

Q. Which of the two industries were here first; the hydraulic mining or the agri- 
cultural ? — A. I believe the mining was here first. 

Q. What do you think can be done to obviate these difficulties ?— A. It is hard to 
tell what can be done. I have no plan to suggest other than that proposed by the gen- 
tleman who has just spoken. The rivers can be dammed and then thus keep the larger 
portion of the large material up in the mountains and take the slickings onto the 
tule land. This sediment can be carried off in the way cauals are made, and I think it 



PUBLIC LANDS. 213 

would be a benefit to the land. The slickings grow good crops of grain, clover, and 
grass. 

Q. What value do the foot-hills have for agricultural purposes ? — A. There is a lit- 
tle portion of it that grows good grapes, but the larger portion of it is not worth any- 
thing at all for agricultural purposes. There are a great many little places where the 
rancheros can scarcely make a living on them. They raise a little wheat in the foot- 
hills ; they raise it for hay. I do not think that any one raises it for threshing purposes. 

Some years ago there was some vineyards planted out here, but they didn't seem to 
pay. 

Q. Do you raise much fruit here ? — A. Yes, they raise considerable fruit here — apples, 
pears, grapes, plums, peaches, &c. I think these lands are better for fruit than any- 
thing else. 

Q. What do you think of the policy of continuing the present mineral reservation ? — 
A. I think it is a very good policy, the best that can be done. 

Q. What is your judgment of the advisability of shortening the time in which a 
man can complete his title to placer land ? — A. I think it would be a good idea to 
shorten the time ; there would not then be so much litigation. If the time was short- 
ened it would not then hang fire so long, and the land would not be held without 
development, and it would serve to check speculation also. 



Testimony of Edward F. Taylor, register United States land office at Sacramento, Cal. 

kLAND Office at Sacramento, 
September 30, 1879. 

I have been connected with land business for ten years as land clerk, attorney, and 
register. The lands undisposed of in the Sacramento district are generally mineral in 
character, interspersed with strips of agricultural lands. I think but a very small 
portion of them are really mineral in character, though reserved as such. I do not 
think it is expedient to withdraw large bodies of land as mineral, as tending to retard 
the settlement of the country without corresponding benefit to mineral interests. The 
expense thrown upon an agricultural claimant in disproving the mineral character of 
a piece of land is, on an average, $25 ; that is aside from making any payments for the 
land and aside from the attorney's fees that may be involved. In an ordinary pre- 
emption case I suppose $25 would cover the expense, and in the homestead case proba- 
bly $40 or $45. 

Question. What would make the difference between the pre-emption and homestead 
cases ? — Answer. I include the fee paid in the homestead case, which is larger. 

Q. I am referring to the additional expense thrown upon a man by reason of his 
having to prove the non-mineral character of a piece of land. How much would that 
be ? — A. I presume it would be about $10. The expense depends mainly upon the 
number of witnesses and the amount of testimony. There are a great many contro- 
versies as to the character of the land in my district, and in all of them the agricult- 
ural claimant has to take the burden of proof. In my judgment the general tendency 
of the law has been to retard the taking of government lands. I think it should be 
made as fully incumbent upon the mineral applicant to prove the character of his land 
as upon the agricultural claimant, and that some provision of law should be made by 
which he should make his proof, else his application should expire by limitation. I 
am speaking of the mode of disposing of mineral, or so-called mineral, lands. If no- 
body applied for a tract reserved as mineral, it would be good policy to allow an agri- 
cultural claimant to give notice by publication that he would make proof and payment 
at the land office ; and if there were no adverse claimants, then to dispose of it to the 
agricultural claimant. If it was afterward discovered that the land was mineral, I do 
not think that the United States should be permitted to dispute that title. If it turned 
out that the man knew the land was mineral, that would be another matter, because, 
if he knew that it was mineral land in entering it as agricultural land and. making 
the proof required by the law, he obtained it fraudulently ; but I would not require as 
specific proof in reference to the character of the land in cases where there was no 
contest as in other cases. I believe that were land so disposed of in either manner it 
would be of advantage to the government. I do not understand why it should make 
a difference how I obtained a tract of land if I make the required proof and payment. 
If the land was not known to be mineral, and there were no mines existing upon it, 
and none had been discovered, and I was using that land for agricultural purposes and I 
should discover a mine upon it, I think I would use that laud more judiciously than 
one who should buy a small part of it for mineral purposes and leave the rest to go to 
waste. It would be well to adopt some rule of law which would fix the rights of such 
parties as against discoverers of mineral. My idea is, and has always been, that any 
tract of land that was not fully established as mineral in character should be disposed 



214 PUBLIC LANDS. 

of as agricultural land, and where a party applied for it as agricultural land, and his 
proof that no mines existed upon it and that no discoveries had been made upon it 
was accepted by the government, no subsequent discovery of mineral after the entry 
had been made should militate against him unless the proof was proven to be false. 

In reply to the question whether — in view of the fact that in making surveys in- 
structions require that a deputy should declare the character of the land in his field- 
notes, and yet, after he has returned the survey and the land is classed as agricultural 
lands, the present practice allows anybody to dispute that and to introduce ex-parte 
testimony of its being wrong, by which the character of the land is never settled — it 
would not be better for the government to settle the question of character before 
offering the lands as agricultural, and that they should forever, to all intents and 
purposes, belong to the classes then designated, I do not think that would be the 
proper way, because a surveyor might go into the field, examine lands, and make his 
returns and a long time elapse before any application was made for that land for any 
purpose whatever, and in the mean time there might be a discovery of mineral made 
upon it. 

Q. Suppose there were, what harm would that do ? — A. Let parties then make their 
application for it as mineral lands and show it to be mineral in character. Of course 
in this district, where nearly all the lands undisposed of are regarded as mineral, 
there is a very small portion of them really mineral; but so long as there is a definite 
manner in which the agricultural character of them shall be established, the agri- 
cultural claimant who makes an application and makes an entry of such land would 
never know whether he is to become possessed of it until he receives his patent. 

Q. Suppose, in making a survey, the government does make a determination of the 
character of the land, would not that be better than allowing subsequent disputes? — 
A. I think that would, be better than it is now. Allow any man who might desire to 
make an entry of a tract of land to make the entry, but only of that character of land 
previously established by the government. I think that would work very well. When 
a patent is issued it should be given as against subsequent discovery. I think that the 
custom of establishing mining districts under local laws and regulations should be 
abolished and all mining in this country carried on under one United States law ex- 
ecuted by United States officials. I believe this advisable, because in a great many 
instances it is impossible to say what the local laws are, and in a great many mining 
districts there are no laws except such as are recognized by miners as custom. There 
are no written laws, and it would be very desirable in making an entry of mineral 
lands or noting the discovery of a mine that it should be located under United States 
law ; and then if an owner is afterward required to show a chain of title, he should 
only be required to show it back to the original locator under the United States law. 
I would require a notice, allow whatever be deemed best as to quantity, and let that 
be the basis of a chain of title to bind that land. I do not mean this should be done 
without regard to locations that have already been made in districts that have written 
laws and regulations. Such should be maintained. As regards the local laws and 
customs under which mining is now conducted, I think there are objections against 
the continuance of that system by reason of the loss and destruction of records or op- 
portunities for their manipulation, which are afforded by the loose and irregular man- 
ner in which they are now kept. This would be corrected by commencing with the 
United States land officers in the same manner as is now done where agricultural lands 
are involved. I would abolish all recording of mineral claims under any local cus- 
toms, rules, or regulations, and by law make it imperative that the quantity of mine- 
ral land applied for should be a legal subdivision. I would make lode claims in this 
district by legal subdivisions. 

Q. After a man had made a mineral location by legal subdivision, would you allow 
him to follow his vein outside of the land, or would you require him to confine his oper- 
ations entirely within the vertical sides of his own tract ? — A. I scarcely know about 
that. If a 40-acre tract is entered as a lode claim and the forty acres adjoining is an 
agricultural claim and the lode was found to have penetrated the agricultural claim 
below the surface, I think he should be allowed to follow it, but if both tracts are en- 
tered as mineral, I think if the lode goes on to the second he could hardly claim the 
privilege of following it there. So far as my judgment goes, no injury would result 
from bounding the side lines of mines in this country, as their end lines are now- 
bounded. I do not remember the depth to which mines are carried in this country. 
There are mines here that have reached a great depth, but I do not remember the exact 
depth of any of them. I think, if the present system of lode claims is continued, it 
would be a good idea to require locators io commence by an official survey of their 
proposed claims, the surveyor being prohibited from making any survey which would 
overlap one already on record. I think that the best plan for doing away with litiga- 
tion that could be adopted. 1 suppose the details of such a survey and its cost could 
be fixed by statute as well as any other fee. It would be more expensive in some in- 
stances than in others. If the application for a mineral survey was commenced by an 
official survey, I think the proper way would be to file the survey with the surveyor- 



PUBLIC LANDS. 215 

general and require him to prepare a 'diagram showing its location and relation to the 
public surveys, in the same manner as he now does in some cases, and require that to be 
filed, immediately upon the survey being reported, in the local office of the district in 
which that claim is situated ; and I think it would be best to make it the duty of the 
-surveyor-general to furnish the local office with an amended plat showing just where 
that claim was located upon the township plat, and I suppose he should give the same 
kind of notice at Washington. That would not require any correction of the original 
plat ; the amended plat, showing the location upon any certain section or subdivision 
of land when compared with the original plat, would show the changes, and the dia- 
gram could be attached to those original plats, in many instances, instead of the amended 
plat. Or he should be required to furnish immediately, diagrams of the section and 
afterward furnish an amended plat, showing all of the locations in that particular 
township or range, every three or six months, keeping one extended plat in his own 
office. It is true that there would then be a greater or less period of time between 
the finding of the claim and the date when the official survey could be made. As it is 
now, if he complies with the law he marks his claim off on the ground as he locates 
it ; then, if there is any other applicant for the same tract or claim it cannot be oth- 
erwise than that he would have notice of that fact when the adverse claim comes up. 

Q. I mean the man who is the first discoverer. How would you protect that man 
against subsequent parties up to the period when he gets a survey made ? — A. In that 
instance it would be best that he should give notice in some place of his having taken 
up a claim. Under the present system he protects himself by filing with the mining 
recorder. 

Q. Why not make it his duty, after making a discovery, to ascertain himself in what 
legal subdivision that land is located, and file a notice of intention to claim it ? — A. 
Suppose he has gone out a hundred miles in the wilderness and a long way ahead of 
surveys, under the present law no one could make an application for patent until the 
survey is made. 

Q. I am speaking of the acquisition of possessory rights. You do not have to make 
a survey for that ? — A. No. I think if he wants the land for mining purposes he 
should be required to take some steps to procure it, and there should be a time within 
which he alone should have the right to procure title. 

Q. Under the present system, as a matter of fact, does a man when he takes up a 
possessory claim do anything more than file his notice of location with the mining 
recorder and allege that he has discovered a lode ? Is there any other evidence of that 
fact except his say-so ? — A. No, sir, not until he makes application for his patent. 
I think, therefore, it would be well to provide that a discoverer should take up his 
claim in such manner as to give notice to other parties of the limits of his claim until 
such time as he could get a survey made. That is as regards proof of the discovery of 
a lode, but the best evidence would be in the form of ex-parte testimony. If any other 
plan were adopted with reference to taking evidence the same character of testimony 
could be furnished by adverse claimants. Under the present system the existence of 
a lode is always assumed. A system should be devised by which that fact could 
always be proven, and I know of no better way to do it than to require that proof be 
made in the same manner as it is now required. Of course there could be a system of 
determining it by governmental inspection. You might make it incumbent upon him 
to have a United States deputy surveyor go on the ground and report whether there 
was actually a lode there or somewhere else, and it might be made the duty of the 
surveyor to do this before he made the survey applied for, and he might have instruc- 
tions not to make the survey unless he actually determined the presence of mineral. 
I think ninety days would be a sufficient time for a man who had located a claim to 
show that he had a lode. He is better able within a short time to go in and prove 
up his claim if it is a gold-bearing lode than an agriculturist is. 

There should be some period of time within which all persons who have made min- 
eral locations should be required to come in and prove up under penalty of having 
their applications wiped off the books. All applications on file should be completed 
within a given time or Bhould be canceled. All parties who have presented applica- 
tions should have notice to come in and complete their cases within a given time, 
and I think that six months would be enough for all applications, and I would pub- 
lish it that the principals in all applications on file, on or before a certain date after 
the passage of the law, were required to prove up and make payment for their lands. 

In case of controversy arising in relation to mineral claims, I do not know of any reason 
why it should be taken out of the executive department and turned over to a court, nor of 
any benefit arising from such a course. Such controversies can be determined by the 
Land Department with more facility than they can be by a court, and I cannot conceive 
of any good reason why any case of that character should go into a court. 

The United States should retain jurisdiction over its mineral as well as agricultural 
lands until it relinquishes title. I think the settlement of questions arising under the 
land laws would be attended with less expense to the claimants and be determined in 
less time by keeping them in the Land Office. I am of opinion that more substantial 



216 PUBLIC LANDS. 

justice would be done "by a United States officer" three thousand miles off than there 
would he by a local jury where there is more or less feeling. There is a certain set of 
men who will always testify in favor of a party belonging to their class, and there 
must necessarily be prejudice to some extent in the minds of a jury, and I think that 
if after the testimony in a case was taken it was referred to officers three thousand 
miles distant and who only had the cold testimony to look at, they would probably ar- 
rive at a more just conclusion than those knowing the parties. I think that the ex- 
ecutive officers of the Land Department should be clothed with jurisdiction to see that 
there was a meritorious adverse case made out before it was referred to the courts at 
all. Such cases are frequently never reached in court and then the final patenting of 
the original claim must be suspended. I think the better way would be for the Land 
Department to have exclusive jurisdiction of all land matters. 

As regards the recording of mining claims, I am clear that it would be best to sub- 
stitute the jurisdiction of the United States officers from beginning to end until the 
patent is issued and the land reverts to private ownership. 

I think it would be an improvement in the manner of disposing of public lands on 
which lodes are discovered if you require the discoverer to take his claim in a 40-acre 
tract ; as it is, I know of no instance in this district where there is more than one lode 
or claim upon any subdivision of land. Now when a party makes application for a lode 
claim and it is surveyed small pieces of land are left in the subdivision probably bear- 
ing timber and no use is ever made of that fraction. The miners cut the timber and 
the land lies there and is that much dead loss to the government, whereas if they were 
required and allowed to take the entire subdivision it would not be more expensive to 
the miners and more profitable to the government ; but if a subdivision of 20 acres 
would embrace the claim, and leave just one-half of the 40 acres in proper shape, I 
would give that; but I would fix the maximum limit and the shape in which it should 
be taken. Timber lands of course are protected when they pass into the hands of pri- 
vate parties, but there is now little or no protection for them. Under the law miners 
now have the privilege of going upon public lands and removing the timber for mining 
purposes, and the result is that all the timber is taken off a tract of land and it is then 
valueless and it can never be disposed of. If they were permitted to apply for it in 
the other way, it would all be taken. There is a great deal of timber in this district 
and great destruction of it. A great deal of the land is valuable for no other purpose 
than the timber, which consists of oak, pine, cedar, and some sugar pine in the mount- 
ains. I do not think I would be able to give or to get accurate data of the amount of 
lumber manufactured and exported from this district. The greater part of what is 
made is, however, consumed in it. The department has ruled that on mineral lands 
people have the right to cut timber for mining and domestic uses. The law which 
allows this character of timber to be taken I regard as wrong. The parties who use 
such timber are well able to buy it. I know both from statements made to me by par- 
ties living in the different neighborhoods and by personal observation that there is great 
destruction of timber in this district, and many applications have been made to my 
office in the interest of lumbering firms. Very many fraudulent entries have been made 
on this account and a number of agricultural claims have been taken up for the sole 
purpose of cutting and selling the timber from the land. I could not give more than 
a very rough estimate of these depredations but will prepare and forward a statement 
concerning them. My opinion is that where a party wants to enter a tract of purely 
timber land for the purpose of using the timber, he should be permitted to enter a sec- 
tion at a dollar and a quarter per acre. There might be some method prescribed to 
show that the tract designated was actually timber land, and notice should be given 
to the world that the land was claimed for its timber alone, and within a specified time 
after giving such notice he should be required to make payment. 

I am of opinion that the placing of these timber lands in the hands of private in- 
dividuals would be the best way of solving the problem of timber depredations. I 
think it is the only possible way in which the timber can be protected from exter- 
mination, for after passing into rmvate ownership it would be protected and utilized. 
I do not think there would be many instances where lands withdrawn as mineral 
would be taken up as timber lands, if proper rules were established for determining 
whether they were timber lands or not. Tho people who want to purchase the tim- 
ber do not generally want the land after it has been removed. It then frequently be- 
comes good for pasturage, and might be sold by the first owners for that purpose. A 
good portion of it would have a value aside from the timber. 

Q. In disposing of timber lands generally, in the midst of which mining camps are 
located, the first objection to your proposition would be that under the guise of buy- 
ing timber much mineral land would be acquired by dishonest parties.— A, You could 
avoid that by selling the timber on the land without disposing of the soil ; then if 
there were any mineral discoveries afterwards they would be On land belonging to 
the United States, which could be entered as such and sold subject to the provisions 
of the mining laws. I do not think it would be well to dispose of timber lands 
chiefly valuable as such, without reservation, in view of the fact that mineral dis- 



PUBLIC LANDS. 217 

coveiies are liable to be made upon them at any time ; nor do I think the government 
should make provision for sale of alternate blocks of this timber, as such timber would 
be cut and removed just as it is now. If you reserve the alternate blocks and give 
the public an opportunity to buy the alternate blocks of timber, they would cut from 
the government sections under cover of their own lands, and would have greater fa- 
cilities for so doing than they now have. 

As far as my knowledge extends I believe that a law that would put such public 
lands as are not mineral on the market in this State for sale at one dollar and a 
quarter or two and a half an acre would meet the approval of the community— that 
is, I mean such as are not timber or mineral, but such as should be applicable to entry 
under the homestead and pre-emption laws. I think sueh a law would be popular for 
agricultural and pasturage lands. I do not think that much valuable timber land 
has been entered under the homestead and pre-emption laws by perjury ; I think as 
a general thing such entries are actually for homestead purposes. 

We have on file in this office over 7,000 declaratory statements, of which some 3,300 
have been perfected by making payments in the authorized manner. In some cases 
five or six applications have been filed for the same tract of land that was ultimately 
entered by one of the parties as a pre-emption claim. I do not kn ow what the proportion 
of that kind would be, but I think a majority of applications for surveyed lands have 
been covered by other similar applications. I do not know whether it would be ex- 
pedient to repeal the pre-emption law and leave only the homestead act. My opinion 
is it would be well to have some other method of disposing of the land besides the 
homestead act, because most parties who enter land under the pre-emption law also 
enter a tract as a homestead, and in that way they get 320 acres of land, which is not 
too much. That has been the custom of the actual settlers in this district. They 
commence with their pre-emption first ; file their claim to a tract of land, prove up, 
and make payments. They then make a settlement under the homestead law, and 
as they respect each other's rights they generally get adjoining land, If the pre- 
emption law were abolished the settler could only claim title to 160 acres of land, and 
he could have a larger quantity of the kind than he could obtain in this State. I 
think 160 acres of land of the character found here is not sufficient for a man, and I 
would give him more, either by keeping up these two laws or by consolidating the 
two and giving him 320 at once. I think this because if the 320 acres of land were 
divided in two tracts, as he might take them now, he would probably be able to se- 
cure a larger percentage than if he were compelled to take it all in one block. He 
might get 160 acres of reasonably good land by picking it in the former way, while 
he could not by taking one solid piece. 

I do not think there has been one timber-culture entry in this office where the per- 
son entering has made any effort to complete the entry. He can make such an entry 
and hold others off the land for seven years. I think there have only been five desert- 
land entries. 

I do not know of any limit to the location of additional homestead scrip so long as 
a man's pocket-book holds out. A man can enter a homestead and pre-emption and 
then he can make a desert entry, and after that he can locate as much additional 
scrip as he is able to buy. 



Testimony of J. W. Tripp, San Francisco, Cal. 

J. W. Tripp, of San Francisco, testified October 7 : 

Agriculture can be carried on successfully without irrigation north of Fresno County; 
but in Fresno, Tulare, and Kern Counties it cannot be carried on without irrigation. 
On the foot-hills of the Sierra Nevadas and of the Coast Eange irrigation is possible. 
The Sierra Nevada lands, where th e timber grows, are supposed to be the best lands for 
vineyards and fruits. They are at present only available for the timber that is upon 
them. These lands where the vines and fruits can be cultivated are the pine lands 
back in the higher Sierras. The oak lands in the foot-hills are grain lands. The moist- 
ure falls in the high mountains and seeps down and keeps them damp, thus enabling 
settlers to raise a crop of wheat and cereals of some kind. In the country I speak of 
there has been no destruction of the timber. I do not think the fires or depredations 
have injured or interfered with it at all. There is only one saw-mill at the head of 
King's River. The destruction is un appreciable there. I don't think there has been 
a great deal of damage done to the large timber on account of the fires. It is an ex- 
traordinary fire that kills the timber. 

Question. What method of disposing of this timber would be best for the purpose 
of utilizing the timber for industrial purposes and preserving the timber? — Answer. 
The only way to preserve the timber is to dispose of it in large quantities, and let a 
man pre-empt it, inducing the people to locate these lands as timber lands, to be 
always kept as such. When one tree is cut let them plant another. If a man has a 



218 PUBLIC LANDS. 

large tract of timber lie will preserve it ; but if a man goes on 160 acres and puts a 
mill there be will cut off the timber and sell it, and when the timber is all cut off this 
tract he will pre-empt another tract ; and thus they never preserve the timber. The 
only way to preserve the timber lands is to allow them to be held in large tracts, and 
to allow a man to fence his tract and protect it by law. He will then take care of his 
timber and see that there are no fires, and will always keep the trees there ; but if a 
man has but 160 acres there is nothing that he can do but sell the timber off it as soon 
as possible. There is not a man to my knowledge who for twenty years past has left 
a foot of timber on the lands that he has located for the timber. It becomes a specu- 
lation the same as the mines. He takes up a timber claim just as he takes up a mining 
claim, to get what he can out of it and move away from it. The farmers are too far 
away from their timber for it to be of any use to them. A man living in the valley 
would have no use for the timber away up in the mountains. If he cut it he would 
sell it before twenty-four hours, because he could buy his timber more cheaply, sawed 
into lumber, than he could get it off himself. It is too difficult of access and. too com- 
plicated a subject for a man whose business is farming. 

Q. How can the irrigable lands be best taken up by actual settlers ? — A. The best way 
to acquire homes for men who irrigate lands is for them to be supplied with water. 
Twenty acres of irrigable land will support any man that has a family. He can get a 
crop every sixty days. In Tulare County he can get in that time a good crop off it if 
he can get the water. I consider that the desert-land act, so called, was one of the 
best laws that was ever enacted. Under that law he gets his land for 25 cents per 
acre. 

Q. Why cannot a poor man make a homestead on land capable of irrigation? — A. 
Because he cannot get at the water. It takes combined capital to take out the water. 
It will cost to water the land of the San Joaquin Valley for irrigating on a large scale 
above $1 per acre. A main canal from King's River into Tulare County can be built 
for $100,000 that will irrigate 100,000 acres of land. The settlers can then make their 
distributing ditches. But the poor man cannot take out this water unless by co-opera- 
tion. Much capital is necessary to redeem the irrigable lands, because to carry water 
it requires a canal 100 feet wide and 4 feet deep, sufficient to irrigate 1,000 acres every 
twenty-four hours. Every foot of that land when overflowed insures a crop without 
failure. That is in Kern River country. In the San Joaquin and Fresno Counties the 
moisture is deeper, and there it requires more water to fill up the ground. In Tulare 
County one foot of water will fill up the ground. With this one foot the water will 
soak into the land — it will soak in and be good for one year. Twelve inches of water 
will do to soak into an acre of this land, and the natural moisture is sufficient to pro- 
duce good crops for one year. 

Q. By what system can homes be made upon the pastoral lands, so that those lands 
can be utilized? — A. I do not consider the lands yon speak of worth anything at all. 
They ought to be given away to any man who will take them. In the first place, there 
is no grass on them and but little wood. Where they have 6 inches of -water alfileria 
grass grows, which will last sheep for a short time, and then it is entirely gone. It is 
of no use for feeding sheep. These lands are good for nothing without water. I have 
been in the Snake River country and understand all that land thoroughly. There is 
a sage-brush that grows with bunch-grass, and it is the finest feed we have. It is the 
white sage. It makes the finest pasture land that there is. These lands, where they 
cannot be irrigated, are good for nothing except for pasturage. I -would have the gov- 
ernment sell these lands and get them into the possession of any man who would util- 
ize them, in tracts of 1,000 acres. That would support, the year round, 250 head of 
cattle. The bunch-grass is killed out by feeding and trampling on it. 

Q. Applied to the pasturage lands of this country generally, how much land did 
you say ought to be contained in a pasturage homestead, taking it on an average?— 
A. In this country it is very hard to tell. It is different here from what it is in some 
other portions of the country, which are far superior. I think a man with a family 
with 1,000 acres would be able to live well on Snake River. In the southern part of 
Nevada I should think not less than 5,000 acres would do. In Utah, when I was there, 
the country looked pretty well, and I should think it compared favorably with South- 
ern Nevada. I should say 5,000 acres there. I was in these different countries when 
they were better than they are now. 

Q. Are you not building ditches ? — A. I am. 

Q. State just what you think about irrigation and water rights — how the present 
system could be changed ? — A. Take it in the San Joaquin Valley. The largest quanti- 
ties of water How in King's River and Kern River from April 1 I ill about July. Then 
there is sufficient water in these rivers to water every foot of land in the Joaquin Val- 
ley, which is about 6,000,000 acres. Enough water runs to waste in these streams to 
water the whole area. I w ould suggest that the I faited States Government build main 
canals, and put up reservoirs in the foot-hills and mountains and hold this water back, 
and take it out on each side of the river and distribute it on the lands.. This would 
reclaim the irritable lands. 



PUBLIC LANDS. 219 

Q. If these lands are reclaimed what would you charge for them ? — A. I should tax 
every man $1 per acre for irrigating his land. Under the present law ypu cannot de- 
prive a man of his water if he pays his water rent. The principle of California busi- 
ness is to corner everything. I would suggest that the man who lives nearest to the 
canal should first have his supply of water ; and I never would run the water any 
distance before commencing to put it on the land, for if you do the consequence will 
be that one-half of it will be wasted. As soon as they get the water to the surface 
and flood the country right and left then you might let the water run a long distance. 
The canal companies entirely control the water. I am president of the Muscle Shell 
Slough Irrigating Company. We distribute the water on either side. I will illustrate : 
We run our branch ditches within two miles of a man who had bored his well and was 
within 15 feet of water. We run a ditch past him 30 feet wide and 4 feet deep, and 
filled his well up within 2£ feet of the surface. We have utilized the labor of all the 
farmers. We give them water, and let them pay for it in labor. 

Q. Is there any law in this State in regard to the distribution of water ? — A. There 
is no statute upon the subject in this State ; heretofore there has been no trouble. 
We are the only canal that has put water on to the land. We don't own one foot of 
land. 

Q. Your idea of building these ditches is, to tax the persons adjacent to them, the 
same as in any other public improvement ; you would tax the lands that lie adjacent 
to the ditches ? — A. That is the only way that it can be done ; it can be done only by 
aggregated capital. It is right that the government should own the water — it should 
be the water of the United States ; then it can be taken in such directions as will best 
benefit the country. 

Q. Should the right to the land and the right to the water be separate? — A. It 
should become two independent properties ; that is the only way of satisfying settlers. 
Sometimes the supply of moisture carried through the soil will be sufficient and they 
■will not want the water, and if you tax a settler for what he does not use you don't 
come up to his idea of government. Men would rather take the water and pay for it 
as they use it. One time a man wants to have it and another he does not. 

Q. What is the effect of water in irrigation ? — A. That depends upon the soil. When 
you have to run your water over the land it washes the soil away, but where you get 
a seepage it enriches the land. It becomes richer from using the water. As a matter 
of fact, it will require from year to year less water to irrigate the land. It will 
undoubtedly extend the area of irrigation all the time. The national government 
could better devise and control a system of irrigation than the States and Territories. 
If the government decided to carry on a system of irrigation, they could buy out the 
present owners of water rights. 

Q. Are not the river channels filled up by tailings ? — A. I am an hydraulic miner, 
and I say that the tailings and debris are more injurious to the country and farming 
lands than all the gold that is taken out is worth. If this national system of irriga- 
tion was carried on, it would be a part of it to stop this depositing of tailings in the 
streams. I opened those mines in Dutch Flat, and the lands and timber that have been 
destroyed there would have produced to-day in agriculture more than all the gold that 
has been taken out. The land from Nevada City to Yuba City would have produced 
more than all the gold that has been taken out of it. The soil was from 2 to 4 feet deep, 
and there were thousands of acres of it. There is a great deal of trouble arising out 
of the imperfect manner in which mining claims are segregated from the public do- 
main, and I believe there is a great deal of land held in this State under the placer 
act. I do not believe in disposing of the mineral lands. I believe in allowing them to 
take the mineral out, but in the government's holding the title to the land. There are 
millions of acres in this country useless and idle, which will never be utilized until 
some system of irrigation is inaugurated, if it can be done and you can get the people 
to agree on a method of doing it. It is absolutely necessary, in my estimation, to 
settle it. 

Q. Do you or do you not think that the timber question ought to be placed under the 
control of the district land offices? If the government does not decide to sell it, 
ought it not to license timber men to go and take the timber ?— A. Yes, sir ; I think it 
ought. It would make a man honest, where now the laws tend to make him a dis- 
honest man. I am opposed to hydraulic mining and washing down of the hills into 
the rivers and destroying the valleys. I would protect the valleys and the rivers and 
the lands. If the government would bring water to these dry lands, 40 acres would 
be as much as a man would want. 

Q. Has a corporation a right to withhold water from any man who pays his rent, as 
long as it is running in the ditches ? — A. I do not think it has ; I do not think there 
is any danger in that respect. 

Mr. B. B. Redding. It is a very terrible thing in a republican form of government 
to place in the hands of individuals the power to shut off water from a man's land 
without judicial process. Therefore the future interests of the State require that the 
ownership of the land should go with the ownership of the water. 



220 PUBLIC LANDS. 

Mr. Tripp. I can only illustrate it in this way : If a man jumps on a railroad train 
and refuses to pay his fare lie is put off, and if he comes again with his ticket you 
allow him to ride. The power does not exist to allow us to refuse that man any water 
when he pays his water tax. The new constitution says the water is for the use of 
the land, and I have no doubt but what the constitution will enforce this. We run 
our ditches for the public benefit, and let every man take the water. 

Q. In the future, when the water has been extended as far as it can be extended,, 
won't there be danger of discrimination and favoritism, and should that power exist 
in any corporation or individual? Would it not be better to have the water and 
the land go together % Should not the ownership of the land and water be insep- 
arable ? — A. No, I do not think it should. I have been in this business about five 
years, and I do not think I ever knew a demand for water to be greater than the 
supply in the canals. The amount of water sold should never be in excess of the 
supplying capacity of the canals. I think the United States should control the water, 
and they should use these ditches to the best advantage to distribute the water, and 
tax the land for it. 

Q. If you keep up this national system of water, would it not be a system of interfer- 
ence that would not be tolerated by the people % Would you not sell the water with the 
land? — A. You cannot sell the water with the land. It is impossible, and no man will 
buy the water with the land. The government cannot insure him the water when he 
buys it. It is the water that sells these arid lands. All a man wants to know is 
that he can use the water. He does not want to own it, but to be sure of having 
it, and not be under the terror of anybody's whim about it. If you give a man own- 
ership of the water, he would own all the land in the country. We have water enough 
for everybody. 

San Francisco, October 8, 1879. 

I have been well acquainted in Alaska. I was last there in 1862. I was formerly on 
one of the Hudson Bay steamers, but when last there it was with a party of pros- 
pectors, and I went inland more than 200 miles, following the sources of the principal 
rivers while searching for gold. We found it in all the streams, and sometimes we 
found pockets that panned out as high as nine ounces a day to the rocker. This was 
in August, 1862. The summer commences there about July, and lasts about two 
months. I stopped mining because the diggings were shallow, and it appears the 
gold comes down with the floods and settles on top of the bars. A man could work 
out 300 feet in twenty- four hours. The mining is of about the same character as it is 
on the Columbia River. We stopped because the ground was thin and it was hard to 
find places where mining would pay. We went as far toward the sources of the 
streams as our provisions would allow, and found the same general character of forma- 
tion all the way up. 

The timber is such as is found around Caldwell, and grows slowly. There is a kind 
of pine, that never grows more than six inches in diameter. We found black spruce, 
out of which we made rocker bars. One tree would not make more than four bars. 
We saw plenty of cariboo, but no elk. Moose and bear and grouse were plenty. There 
are long and open valleys west of the Cascades. 

In August, on Carpenter's Bar, 175 miles from the mouth of the Stekine River, the 
ground was frozen six inches deep, and we had to build fires to thaw the ground suf- 
ficiently to sow radishes and turnips. The soil was fertile, and cottonwoods would 
grow there. In September our water-buckets, sitting outside the tent, froze solid. 

The waters of Alaska abound in all varieties of fish, salmon principally, and there 
are cod and halibut, and what is called sea trout are frequently seen in schools. Their 
meat is very white, and the skin is like that of an eel. The natives prefer those fish 
to any others they have there. There is another little fish up there that grows about 
six inches. The Indians cut the fir boughs and sink them in the water, aud they 
spawn on the boughs and the Indians eat the spawn, and 'they procure an oil from the 
fish themselves that they use much. 

There are plenty of Indians in that country, and generally they are better looking 
than ours, and are strong and stout. There is no agriculture to .amount to anything 
in Alaska, and even on the islands the potato only grows about as large as a walnut. 
At Fort Simpson there is some high grass that is quite good tor grazing, but nothing 
else will grow there. There are no seals up the great n\ ers; they are only found on 
the coast. From my experienee while in Alaska, I am of opinion that it will compare 
favorably with what I have heard about Siberia as a mining country. It is only at 
certain seasons that people can mine there. If they find quartz mines they cannot 
work them through the winter. I do not think the government made a bad invest- 
ment in acquiring this territory, and I think then; maybe hereafter as good mines 
found there as on the Columbia. It is worth all we paid tor it. I do not think there 
is any use in extending any system of land laws to that country. The best of the 
placer mines are in British Columbia. Those in our possessions are of little value. 
Our principal find of gold was in what is called New Caledonia. 



PUBLIC LANDS. 221 

The timber in the valleys we saw near the coast is of no use for timber purposes, 
and can only be used for fire-wood. 

The whole population of Alaska, including animals, live off the water, because they 
cannot get a living on the land. Even the bears come out of the hills and live on the 
clams they find. I have seen them sitting on the banks of the rivers waiting for the 
tide to get low so as to get at the clams, which they get up with tneir paws and break 
in their mouths. That is on the mainland. The same thing is true of the hogs on 
Puget Sound, and there almost every hog would have two or three crows sitting on his 
back waiting for him to get at the clam and as soon as it was rooted out a crow would 
snatch it, fly up into the air, drop it on a rock to break it, and then eat it ; so that even 
the hogs have hard work getting a living. The natives all ]ive on fish and depend 
upon the waters for their main sustenance. 

I think that Alaska should be left just as the Hudson Bay Company left it. It should 
be left for the fur animals and for the fisheries. All that is needed is a military sta- 
tion at Wrangle. There should be revenue-cutters stationed on the coast to prevent 
the continuous introduction of whisky among the Indians and that should be made 
a penal offense. I think it is the worst policy in the world for the government of the 
United States to lease out in that country any particular trade like the fur-seal fish- 
ery. The Hudson Bay Company lost money because they could not compete with peo- 
ple who bought skins for whisky, of which the Indians in that country are inordinately 
fond. When unstimulated by liquor they are industrious, and are well enough be- 
haved if they are let alone. 

The coast Indians control the business of trading in furs obtained from animals in 
the interior. They are the middlemen between the white trader and the interior In- 
dians, whom they will not let come down to the coast at all for any purpose whatever. 



Testimony of William Schuhman, of San Francisco, Cal. 

William Schuhman, of San Leandro, Cal., testified at San Francisco, October 11, 
&s follows : 

From information and from facts also, we find that the boundary lines of Spanish 
grants have in all cases run beyond their first confirmation ; that they have run over 
their original boundaries to a very great extent — over a mile or mile and a half in 
many cases. We consider that that extra land ought to be liable to pre-emption and 
settlement. These lands are now withheld from actual settlement by the grant lines 
being extended over them. The fault arises from the fact that the Spanish grantees 
had to pay for their own surveys, and they took the surveyor on the ground which 
they selected and chose for themselves. The Commissioner would report under that 
survey and they got a patent, of course, covering the ground they wanted. Now, we 
are very well satisfied that much land was included within these grants that does 
not belong to them but belongs to the United States, and we wish that this matter 
should be adjusted at the expense of the United States, and that this land should be 
set aside for settlement under the law. In this neighborhood we have discovered some 
lodes or ledges (quartz ledges) containing pure gold, some silver, and some cinnabar. 
In proof of this we can show certificates of assays that were made from mineral taken 
from this land which we claim to be government land. In one case ore yielded 58 pounds 
of cinnabar to the ton, and in another case, by three different assayers, the returns 
from the ore were $25 to $30 in silver, and from $1.50 to $2.50 in gold. The settlers 
are anxious to locate on these lands, and they have no show unless the government 
takes it upon itself to have the surveys adjusted. The government should do that 
and not wait for the claimants themselves to have their own lands surveyed. The 
delay in having these claims settled is very injurious to the prosperity of the State 
and of the United States. 



Testimony of Theo. Wagner, United States surveyor-general, San Francisco, Cal. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1. 

United States Surveyor-General's Office, 

San Francisco, Cal., November 14, 1879. 
To the Public Land Commission, Washington, D. C. : 

Gentlemen: In compliance with your request I submit the following replies to 
questions submitted by you : 

1. My name is Theodore Wagner ; residence, San Francisco, Cal. ; occupation, United 
States surveyor-general for the district of California. 






222 PUBLIC LANDS. 

« 
2. About six years. 

4. As a surveyor and attorney I have been engaged over ten years in surveying lands 
and practicing before the courts, making land matters a specialty. 

5. In contested cases from one to eight years ; in uncontested cases from six months 
to three years. 

6. I have. Contests by reason of requiring the evidence to be reduced to writing are 
expensive. There is no compulsory process for the attendance of witnesses, which fre- 
quently results practically in a denial of a hearing at all. Questions of fact ought in 
all cases to be finally settled by the officer before whom the hearing is had. On paper 
the evidence of the greatest of rogues looks as well as that of a most reliable man, 
and witnesses equally reliable often differ as to facts. The officer, seeing the witness, 
watching his manner of testifying, and perceiving the relative opportunities of the 
witnesses for knowing the facts, is alone competent to judge of the facts from the evi- 
dence. Such matters are not susceptible of explanation or elucidation in the report of 
the officer holding the hearing. 

The register and receiver should be required in contested cases to report findings 
upon all the facts in dispute, and those findings should be final ; or appeal might be 
allowed upon bills of exception prepared under the same rules and in the same man- 
ner as in the courts. 

In contested cases there might also be required a complaint, under oath, setting forth 
the specific grounds of the contest, and the defendant should be required to answer 
within a certain time, under oath, denying the allegations of the complaint and setting 
forth his defense. ' This will bring the parties to a certain issue and will inform them 
as to what they have to meet. As it now is, both claimant and contestant must come 
prepared to meet every imaginable defense or allegation, and must bring witnesses as to 
matters which are not but might be disputed. For instance, a homestead claimant may 
have been away from his claim a year ; contest is entered, and upon a day set for 
hearirjg the claimant appears and in defense sets up that he was sick at some city hun- 
dreds of miles away ; this may be untrue, but the result is that the contestant must 
ask for a continuance to show it is untrue. The fact of absence having been admitted 
by the claimant would have saved the contestant the expense of bringing witnesses to 
prove it. 

If the practice were changed as here suggested it would frequently be unnecessary to 
take evidence at all ; for, complaint and answer being under oath, in many cases where 
there are no good grounds for a contest the same would be dismissed upon the facts 
admitted or disclosed in the pleadings, or a forfeiture and cancellation of entry would 
be ordered upon the admission in the answer. Frequently the party, knowing he had 
no defense, would not answer at all. 

The evils here pointed out are as much faults of administration as faults of law. 
Except in the matter of clothing the register and receiver with power to compel the 
attendance of witnesses, the changes here suggested could be accomplished by 
regulations of the department. 

In many cases settlers have located upon lands within the reserved limits of a railroad 
grant, the alternate sections of public land within such limits being held at the double 
minimum price of $2.50 per acre, by reason of such reservation. 

Frequently in building the roads the line originally adopted is departed from so that 
the lands for which the settlers paid $2.50 per acre are as much as 100 miles away 
from the road on account of which the increased price was paid. It was obviously the 
intention of the act of Congress, approved March 3, 1875, (18 Stat. p. 519) to include 
cases of this kind, but the department has ruled otherwise. To do justice to those 
people I would suggest an amendment by inserting after the words " for failure to 
build said railroad" the words " or if by change of route such lands are kept without 
the limits of the grant to such road." 

In this State, under its laws, persons who fence in and occupy public lands are pro- 
tected in their possession as against all others having no better title. Under these 
laws it frequently occurs that a single individual is able to hold as against others seek- 
ing homes large tracts of thousands of acres of desirable land simply by fencing, using, 
and occupying it. 

Under the laws regulating the disposition of the public lands of the United States 
as interpreted in this connection by a recent decision of the United States Supremo 
Court, it is practically impossible for any person to obtain a title to lands thus in the 
actual possession of another. I therefore suggest the necessity of Congressional legis- 
lation to the effect that possession of public lands shall not prevent their acquisition 
under pre-emption or homestead laws, and further legislation providing some sum- 
mary process by which pre-emption and homestead claimants may obtain possession 
of lands which are thus occupied without right or title other than possession. 

Persons who in search of homes have settled upon lands granted to railroad com- 
panies years ago aro desirous of acquiring title to the land although the roads have 
not been built, and in some instances there is no immediate prospect of it. To prevent 
from acquiring such title retards the settlement of the country, and has a pernicious 



PUBLIC LANDS. 223 

effect by unsettling the habits of the people, making nomads of them. These people 
are willing to pay the railroad companies a consideration proportionate to the value 
of the land to relinquish their rights thereto if by so doing they could secure the priv- 
lege of obtaining the land under the United States laws. If this could be done the 
proceeds might be held in trust by the United States until the road is built or the 
question has been finally disposed of. Some provision of this kind would be product- 
ive of much benefit to the country at large while satisfying the reasonable demands 
of the settlers, and would not interfere with any railroad companies, but would rather 
assist them with means to build their roads. 

Section 2401 of the Eevised Statutes, which provides for surveys under the special- 
deposit system, excepts mineral lands from its provisions. At the time this law was 
enacted, viz., May 30, 1862, the law provided that only township lines should be ex- 
tended over mineral lands, and the clause excepting mineral lands from the provisions 
of this act was obviously merely intended to bring that provision into harmony with 
laws existing at that time. The law in this respect was subsequently changed, how- 
ever, by the act of July 9, 1870 (sec. 2406, R. S.), which specifically provided that the 
public surveys should extend over all mineral lands. 

As surveys under the special-deposit system are public and not private surveys, the 
act of July 9, 1870, in effect and by necessary implication, repealed the restrictive clause 
of the act of May 30, 1862, or section 2401 of the Revised Statutes. 

Surveys under the special-deposit system are made under the same laws and regula- 
tions as other public surveys, the difference in the systems being in the mode of pro- 
viding for the payment of the cost of the work. 

The circular instructions of August 8, 1870, sixth subdivision, contain the follow- 
ing: 

" By the sixteenth section the interdict placed by the act of March 3, 1853, that none 
other than township lines shall be surveyed when the lands are mineral, is repealed. 
This provision of law being referable to surveys in California only, the extension of 
the lines of future surveys over the lands mentioned in this section applies exclusively 
to that State. The requirements, however, that nothing herein contained shall require 
the survey of useless lands is a principle of general application, and surveyors-gen- 
eral will refrain from extending the lines of public surveys over such waste lands, 
which are considered to he those covered ivith alkali to a depth calculated to prevent the grow- 
ing of crops, moving sand, or other sandy plains of great extent, and abrupt or rocky mount- 
ains not known to contain mineral deposits." 

In none of the mining districts are all of the lands mineral, while the location of the 
districts at points remote from railroads and in positions reached only through expen- 
sive means of transportation renders non-mineral lands in the vicinity much more 
valuable in point of returns on product than lands in more favored localities, to which 
in point of amount of product they cannot be compared. It would be manifest in- 
justice, and surely could not have been contemplated by the framers of the law, to 
deny an agricultural settler in a mineral district the privilege so freely granted the 
settlers in non-mineral districts, that of having his land surveyed that he may se- 
cure title thereto. 

Although nearly all the lands in this district might be claimed as mineral, in but 
few places is the land more valuable for mineral than for agricultural purposes. 

The fourth, fifth, and sixth subdivisions of the circular of instructions of May 6, 
1871, relating to the segregation of agricultural from mineral lands, recognize the 
rights and equities of agricultural claimants and the facts stated herein, and, fur- 
thermore, provide the ways and means for the said claimants to prove the non-mineral 
character of the tracts they claim. Should it be held that the restriction in section 
2401 of the Revised Statutes relative to mineral lands is not repealed by section 
2406 of the Revised Statutes, but is still in force, I would recommend that the at- 
tention of Congress be called thereto with a view to the removal of said restrictive 
clause by legislation. 

I respectfully recommend that the provisions of section 2401 of the Revised Statutes 
be extended to persons entitled to enter lands under other laws than the pre-emption 
and homestead laws, there being in force in this district in addition to these laws the 
act of March 3, 1877, providing for the disposition of desert lands, and the act of 
June 3, 1878, providing for the disposition of lands chiefly valuable for timber. 

In the neighborhood of mines enormous quantities of timber are used, and unless 
surveyed there are no adequate means of protecting the timber lands from spoliation 
of all that renders them of value. The timber lands should be surveyed, so that per- 
sons entitled to enter them under the law may obtain title. There is no danger that 
non-resident speculators might monopolize such land under the law providing for the 
sale of timber lands, as, aside from the safeguards in said law, they would be no better 
able to protect the lands from spoliation than the government is. 

In order that all reasonable facilities may be extended to persons who wish to legally 
acquire title to such lands as they may be entitled to under the law the provisions of 
section 2401 of the Revised Statutes should be extended to all legal claimants of the 



224 PUBLIC LANDS. 

different lands, or more ample appropriations for surveys be provided by Congress. 
I would also suggest that the word " persons" be substituted in lieu of "settlers," in 
the clause " settlers in any township," in section 2401 Revised Statutes. 

The grazing interest should be provided for by authorizing conditional leases of 
public land containing the proviso that the lease shall not be held to withdraw such 
land from tona-jide cultivation and settlement under the homestead and pre-emption 
laws. Such a course, while satisfying the grazing interests, would preserve such por- 
tions of the public domain as may be found to be susceptible of settlement and cul- 
tivation for those purposes ; or grazing homesteads might be provided for with ad- 
vantage by dividing grazing lands into two classes — the first class to be disposed of 
in tracts of 640 acres ; the second in tracts of 2,560 acres ; for the reason that in this 
district 640 acres of grazing land, if not arid or covered with sage-brush, are equal to 
2,560 acres, or four sections, of lands of the latter class. The price of the first class 
should be $1.25 per acre ; that of the second class 25 cents per acre. 

9. While I do not believe that lands can be better classified than they now are, 
I believe that too little attention is paid to the classifications now made by the 
surveyors. There are about 40,000,000 acres of land unsurveyed in this district, nearly 
all of which should be surveyed without restrictions as to character. Grazing and. 
other lands are so intermingled that it is practically impossible to properly draw the 
line of demarkation. Under the present restrictions upon the classes of lands to be 
surveyed, small tracts of land must be left unsurveyed, thus causing the surveys to 
be made in a fragmentary way. There are many cases where the deputy cannot pur- 
sue his examination further than to the borders of the tract which falls within the 
restriction, while there are small tracts within the tracts so excluded which are val- 
uable for agricultural and other purposes, and which might be surveyed under existing 
laws. The restrictions in question have not operated economically to the government 
in this district, as the resurveys necessitated thereby have more than offset any sav- 
ing. As the rectangular system of surveys depends for proof of its correctness upon 
its homogeneous completion, I deem it imperatively necessary to complete the survey 
of the standard and meridian lines, as well as the township extension, at as early a 
date as practicable, in order to avoid in future the serious errors resulting from the 
projection of these lines little by little. The subdivision of the townships into sec- 
tions may then be proceeded with as the settlement of the country demands, or as 
Congress may provide the means, although it is desirable that it be done at as early a 
date as practicable. 

I believe that in the matter of economy the rectangular system of surveys, through 
its simplicity and perfect adaptability by means of its small legal subdivisions to all 
forms of topography, is the most desirable. For land-parceling purposes a more geo- 
graphically accurate survey than can be obtained through the present rectangular 
system is neither necessary nor desirable. A system so readily understood by all 
classes of claimants and. settlers cannot be supplanted by any so-called scientific sys- 
tem without opening the doors to complications and abuses as well as hungry litigants 
and hungrier lawyers. My experience is that the rectangular system is the best that 
can be devised for land-parceling purposes. It is only necessary to revert to the com- 
plications arising in the surveys of Spanish or Mexican grants to determine what a 
departure from the rectangular system may produce. I venture to assert that in most 
cases involving the settlement of the boundaries of a Mexican grant of 640 acres, in 
order to perfect it for patent, more legal talent is wasted, more delay occasioned, and 
more expense incurred than would suffice to survey a full township of perhaps equal 
or greater value and containing thirty-six times more area. 

In those portions of the United States where the rectangular system alone prevailed 
but little trouble or litigation regarding boundaries will be found, and in many of them 
the public surveys have been long since completed, while iu those districts where any 
other system has prevailed the surveys are not only not completed, but it is a matter 
not easily determined when they will be, and trouble, endless litigation, and personal 
violence prevail. An exact topographical survey, such as would correctly define the 
natural features and describe such artificial objects as are shown by the ordnance maps 
of Great Britain, would occupy two hundred years and cost untold millions, and a 
survey to be exact must observe all these requirements. 

Opinion differs greatly as to the comparative merits and economy of the contract 
system and a system based upon salaried deputies. As a mathematical proposition, 
having in view only the one object of insuring the greatest accuracy, there can be no 
doubt that a system of salaried deputies would offer many advantages ; but taking into 
consideration the question of economy and viewing the matter from a pratical stand- 
point, the contract system is certainly the better one. Other branches of the survey- 
ing service carried on under a salary system have been eminently successful so far as 
accuracy is concerned, but it is an open question, even with those surveys where the 
conditions are entirely different from land-parceling surveys, whether they could not 
have been executed more economically and with sufficient accuracy under the contract 
system. I do not believe that the land-parceling surveys can be successfully combined 



PUBLIC LANDS. 225 

with any system of scientific surveying (so-called) with advantage to either, but be- 
lieve that it would be a disadvantage to both systems and objects. 

The surveys in this district are so nearly completed that a salary system would not 
work well. The unsurveyed lands are not in large connected bodies, but are in patches 
all over the State. Under a salary system, if a few townships in the most northern 
part of the State were to be surveyed, I should be obliged to send a deputy, at great 
expense for transportation, supplies, and animals. The supplies might be sent from 
here, but the transportation for the animals would amount to more than their cost if 
purchased in the neighborhood of the work. Upon the completion of the work the 
animals would have to be sold. I would have many more details to attend to, although 
I cannot now, through my numerous duties, give such attention to the supervision of 
field work as is really desirable and necessary. 

Under the contract system deputies residing in the vicinity of the lands to be sur- 
veyed usually get the contracts, thus saving expenses of transportation, &c. These 
men are usually engaged in the practice of their profession in that locality, and, having 
the necessary outfits, can do the work for about one-third less than it could be done 
under a salary system. 

With respect to a salary system, the land-parceling surveys cannot be placed with 
advantage on the same footing with the Geological or Coast Survey, for the reason that 
while the Geological and Topographical and Coast Surveys can prearrange and prose- 
cute their work according to a systematic and regular progression, its work must adapt 
itself to the erratic course of population, following the calls and wants of settlers and 
miners. This is especially true in the case of surveys under the special- deposit system, 
which surveys now amount to more than those made under appropriation in this dis- 
trict. 

Surveys can be made as well under the contract system as under a salary system. 
All that is necessary is proper supervision to see that the law and instructions as they 
exist are faithfully executed. 

While recommending a continuance of the contract system, I would suggest that a 
practical surveyor be appointed as inspector of surveys for each district, the appoint- 
ment to be made by the surveyor-general, subject to the approval of the honorable 
Commissioner of the General Land Office, and his removal to be made only with the 
concurrence of said Commissioner. His duties should be to properly inspect all surveys 
before they are approved. 

The rates now allowed for surveys are totally inadequate for the proper parceling of 
such land as remains to be surveyed in this district. 

The monuments established should be of the most enduring material, and one corner 
at least of each township should be established by a large iron monument. At the 
present rates for surveys it is impossible to secure a better class of corner monuments 
than is now in vogue. At least 50 per cent, should be added to present rates, and the 
proper monuments should be required. The inspector of surveys above recommended 
should see that they are properly established, and legislation should be had for their 
protection. The monuments best adapted, in view of permanency and certainty, should, 
in my opinion, be made of iron, covered with tin or galvanized. They need not be 
large, but should be set well in the ground, with " £ sec." or " sec. cor." cast upon them, 
and. should be furnished by the office. 

Whenever more attention is paid to the classifications made by the surveyors more 
care will be exercised in making such classifications. By an increase in the rates for 
surveys more minute examinations, descriptions, and topographical reports will ba 
feasible, and with better monuments the surveys will be as near perfect as need be. 

7. In the belt between what is called the "foot-hills" and the snow line of the Sierra, 
although much of the. surface lies on rough mountain sides and in deep ravines, there 
are thousands of acres of land which could be farmed economically. The soil is re- 
markable for its richness, and the higher ground has a marked advantage over the 
foot-hills in point of moisture. 

The climate of the western slope is never very*severe, though the snowfall is com- 
paratively heavy and the spring late. 

There are large tracts of land which have been cut over by lumbermen and wood- 
choppers which could be utilized with very little labor compared with some of the 
lands now being cleared in the northwest. * There are valleys free from timber that 
can be fitted for the plow for from two to three dollars per acre, with good climate, 
good water near the surface, and everything necessary to wealth and prosperity 
within the reach of the industrious. Crops can be depended on with as much cer- 
tainty as in the Eastern States, and much more so than in some of the sections of the 
San Joaquin Valley. Much of this mountain land is adapted not alone to the raising 
of fruits, which are becoming quite important articles of export to the Eastern States, 
but to the requirements of an important factor in the prosperity of the State, the 
wine-growing interest, an industry rapidly assuming proportions which give promise 
that California will ere long rank with the foremost wine-producing countries of 
the world. 

15 L C 



226 PUBLIC LANDS. 

Most of these mountain lands are unsurveyed, and the small appropriations allowed 
this district, being totally inadequate to meet the requirements of the service, pre- 
vent the survey of more than a small fraction of the lands actually settled upon each 
year. The policy of Congress in making such limited provision for the survey of the 
public lands in this district has operated injuriously to the best interests of the State 
and the smaller neighborhood communities. In this connection, although not in 
strict reply to your interrogatory, I wish to submit a brief statement relative to the 
survey and sales of public lands in this district. All the money which may be ap- 
propriated by Congress for surveys in this State is but in the nature of a temporary out- 
lay which in a few months is returned to the Treasury in the purchase-money paid 
for the lands. This is made clearer by an examination of the tabulated statements in 
the Land Office Report for the fiscal year ending June 30, 1878. It appears from those 
statements that there were 535,975.13 acres of land disposed of in this district under 
the various laws, and that there was paid into the Treasury for these lands during the 
year the sum of $456,773.92. The report gives the incidental expenses of sale as 
$47,135.05. It also appears that during said year there were surveyed 1,498,608.12 
acres. 

The appropriation for surveys in this district during that year was $24,700. There 
was deposited by settlers the sum of $13,190.90, and there was appropriated for the 
compensation of clerks and draughtsmen the sum of $10,000 ( which amount through 
the necessities of the service was exceeded by $5,971.76.), and for the salary of the 
surveyor-general $2,750, making an aggregate of $56,612.66. From this it would seem 
that the total amount expeuded in this district in the survey and sale and disposition 
of public lands during said fiscal year was $103,747.71, which deducted from the 
amount realized by the United States upon about one-half the quantity of land sur- 
veyed, namely $456,773.92, leaves a net surplus in the Treasury from public lands in 
this district for that year of $353,026.21. 

The larger valleys of this district which were formerly supposed to be valuable only 
for grazing purposes are now being utilized to a considerable extent for the raising of 
cereals without irrigation, while by the aid of irrigation another portion has been 
made to produce not only the cereals and fruits of the temperate but of the semi-trop- 
ical zone as well. This is especially true in regard to a large portion of the San Joa- 
quin Valley, which a few years ago could have hardly been sold on account of its pre- 
sumed sterility. Much of this land has since been sold at from $5 to $10 per acre, and 
some portions lease at the rate of $2 per acre, the wheat raised in this valley without 
the aid of irrigation forming an important item in the exports of this State. The 
Mohave Desert, for years considered the most worthless tract of land in this district, 
now furnishes the basis for an important industry. It produces a scant growth* of a 
species of cactus the fibers of which are being manufactured into a superior quality of 
paper and filling for mattresses. The raw material is so thinly scattered that a large 
amount of land is required to insure a sufficient supply for the manufacturer, whSe 
the land is not of sufficient value to justify its purchase from the government. Special 
and expensive machinery is required, necessitating the employment of considerable 
capital. In order to encourage this industry and give parties engaging in it a reason- 
able assurance of a sufficient supply of raw material to make the enterprise .lucrative, 
I would recommend that Congress be requested to authorize the proper officer to lease 
such of these lands as may be desired for a term of years, the lease to contain the pro- 
vision that the lands are leased only for that particular purpose, and nothing therein 
shall be considered as in any manner withdrawing the lands from settlement under 
the pre-emption and homestead laws. 

The climate of California embraces all varieties from that of the middle temperate 
zone to that of the tropics. The average rainfall* varies in different parts of the 
State from four to thirty-five inches ; the average of the State at large is probably 
about twenty inches. The rainy season lasts from about the middle of December to 
the middle of April, the larger part of the rainfall being- usually before February. 
A considerable portion of the Stat<% including the Sacramento and San Joaquin Val- 
leys, the lowlands along the coast, and most of the valley lands in the south half of 
the State have no snowfall. In the valleys of the north snow falls to a depth of 
from one to three feet, its average duration boing from one to throe months. In the 
extreme mountain regions the fall reaches twenty feet. 

The supply of water for irrigation is varied. In some localities it is abundant, in 
others scarce, and some have none. Water is generally needed for irrigation from April 
to June, after the close of the rainy season. The necessity for irrigation, especially 
for cereal crops, arises from the fact that the rainfall ceases before the crops are suf- 
ficiently advanced to mature without further supply. If the soil is thoroughly satu- 
rated during the rainy season, say between February and the last of April, a fair crop 
is insured. A proper system of irrigation should utilize all the rainfall, first by ditches 
to carry the water over the land and iusure a thorough wetting while the rain is fall- 
ing instead of allowing it to run to the sea in the natural water-courses ; and second, 
by constructing reservoirs to hold the surplus water until needed. With an average 



PUBLIC LANDS. 227 

rainfall four- fifths of the present cultivated area will produce the ordinary crops with- 
out irrigation. The most important object to be accomplished by irrigation in the 
State at large is to insure a crop in dry seasons. The productive capacity of Califor- 
nia, to state it moderately, would be doubled by a thorough system of irrigation. As 
a rule irrigation is now only practiced in raising fruits and vegetables. Probably nine- 
tenths of the grain produced in the State is raised without artificial irrigation. 

In the northern and mountain counties where the winters and late frosts prevent 
early sowing, and in some parts of the San Joaquin Valley, irrigation is resorted to for 
raising grain. Ordinarily one inch, miner's measure, of water — equal to ten gallons 
per minute — is sufficient to irrigate an acre of the driest land. The average quantity 
of pasturage land required to raise one head of beef for market is about three acres — 
on natural pasturage. The growth of grass is generally diminished by pasturage unless 
agriculture and improvement are resorted to. Sheep and cattle do not graze well on 
the same land ; cattle will not graze where sheep range. 

There are in California about 19,000,000 acres of timber land. The redwood timber 
belt on the coast contains about 3,500,000 acres, and the pine region of the Sierra be- 
tween 15,000,000 and 16,000,000 acres. In the first-mentioned belt the timber is chiefly 
redwood, with pine, fir, and cedar. In the Sierra the timber is pine, fir, spruce, and 
cedar. The sequoia is found on the west slope of the Sierra, between latitudes 35° 47' 
N. and 37° 50' N. 

The only timber planted in California to any extent, except fruit trees, is the euca- 
lyptus. I would sell timber land in the same manner as agricultural land — allow one 
year after survey for homestead and pre-emption claimants, then offer the remainder 
at public sale to the highest bidder, and. make what is then left subject- to private entry. 

In my opinion the best preventive of destruction of timber, either by fires or cutting, 
is private ownership. 

The law should require that locations of mining claims be recorded in the office of 
the recorder of the county in which the claim is situated. This with a rigid enforce- 
ment of that portion of the act of May 10, 1872, which requires the boundaries of a min- 
ing claim to be located upon the ground so they can be readily traced would make the 
laws relative to mining claims as perfect as need be. The boundaries of locations 
should be fenced or indicated by monuments erected along them, in sight of each other, 
and in no case more than fifty or one hundred feet apart, thereby fixing the locus be- 
yond possibility of floating. 

Very respectfully, your obedient servant, 

THEO. WAGNER, 
United States Surveyor- General. 



Testimony of Thomas Waser, attorney-at-laiv for land claimants, El Dorado County, Cal. 

The questions to which the following answers are given, will be found no sheet fac- 
ing page 1. 

1. Thomas Waser, Placerville, attorney for land claimants. 

2. Twenty-five years in California ; all of said time in the mining region of El 
Dorado County. 

3. I have, to 80 acres of mineral land, under the mining laws of the United States. 

4. By acting as attorney for land claimants for the past eight years, under the home- 
stead, pre-emption, and mining laws. 

5. Until the past two or three years. Patents were issued in many cases in a few 
weeks after final entry at the Sacramento office. The cost to a mineral claimant, with- 
out contest, including attorney's fee, $50, would pay for everything, and parties did 
not go to the office at all when no contest exists. We have had lots of trouble in con- 
tested cases between mineral and agricultural claimants, also several contests between 
miners, the costs and expenses always amounting to more than the property was 
worth. For the past few years it seems to be almost impossible to get a patent for 
anything. 

6. Amend the mining laws so that there shall be a time certain in which claimants 
shall be required to make final entry. Have patents issued in every case where there 
is no contest or adverse claim, and have the patent include everything there is in the 
ground, including quartz, except ditch and water rights, whether mineral or agricult- 
ural. 

7. In this section the lands are mainly agricultural and grazing. Even those classed 
as mineral at this altitude (1,823 feet) are susceptible of the highest state of cultiva- 
tion. The only question not settled by some, what are the great body of the foot-hill 
lands of California most valuable for ? 

8. Our lands are fast beiag settled and claimed. By allowing settlers under the 
homestead and pre-emption laws, as well as mining laws, to lay their claims and 



228 PUBLIC LANDS. 

require them to conform to the law, whether they claim as mineral or otherwise ; and, 
after satisfactory proof is filed, with the local laud office and the entry is made, give 
the man a title without delay, and remove the requirement of posting notices and dis- 
proving mineral by publication ; it costs too much. I refer to lands susceptible of 
cultivation, and no one knows that, better than the settlers themselves, our grazing 
and timber lands, that have no other agricultural value, should be sold in sections, as 
a less quantity would not justify. They can be properly classified by any intelligent 
commission by personal observation. 

AGRICULTURE. 

1. Best in the world. About thirty-rive or forty inches per year ; snowfall at this 
point about ten inches. During the season supply of water sufficient for tbe present 
demand and population. 

2. Commences in November, and continues till February or March, with showers 
later in the spring ; at a season when it does no good at all for irrigation, other than 
to furnish the earth with its annual supply of water. 

3. But little successfully. Grain sowed in the fall will usually do well, and grapes 
over four years old will do tolerable without irrigation ; but these foot-hills are not a 
success without water, with it they will produce everything. 

4. Nearly all of it. 

5. Clovers of all kinds, three and four crops a year. The best of fruits and grapes, 
potatoes, &c. 

6. No wheat irrigated at all ; it don't need it if sown in the fall, and won't pay to 
irrigate wheat. 

7. A large canal tapping the South Fork of the American River and lakes in the 
vicinity of its source. 

8. A great deal of water is used to irrigate after being used for mining, which, with 
its sediment, is a great improvement to the lands. Crops are uncertain after you get 
above, say, 3,000 feet above sea level. 

9. Water sold for irrigating is usually absorbed in the ground, as it is bought in 
small quantities and distributed as long as it will run. It is measured out in small 
boxes and outlets from the main canal and ditch or reservoir and sold by the day at 
25 cents per inch (of 2-inch pressure) ten hours per day. No voluntary return to the 
stream. 

10. Nearly the whole supply. By a system of storage in the mountains sufficient 
water could be saved from the melting snows to irrigate this whole country requiring 
it. Claimed under local laws declaring the title and use of the water in the locator, 
provided it is used for some valuable purpose. 

11. As many as there have been about land, the water rights being the most valu- 
able. 

12. About two-thirds of our county, so far, but more especially the portion lying 
well up in the Sierra Nevada Mountains. 

13. Yes, if the settler so desires ; but lands having only pastoral or timber value I 
would sell in sections. 

14. No. Under stringent law I would sell to settlers in good faith not to exceed one 
section to the man, and no second entry allowed. 

18. Greatly diminished from the increase of stock, not allowing the seeds to ripen 
and keep up the supply. 
21. Usually good. Mountain streams, springs, and ditches. 

24. No. Sheep let cattle out. 

25. Often trouble arises. Cattle and sheep won't do together at all. 

27. Our. lands are all surveyed. The timber land I would sell at $2.50, and pasture 
or mountain grazing land being properly classed at $1.25 per acre. 

28. Surveys made by government are poorly marked. Often or nearly entirely the 
corners are indicated by some little stake cut on the ground, which is gone in a year 
or two, and the settler is compelled to have it surveyed at his own expense. No stone 
corners or mounds. This part of the public service needs reform. 



1. About one-fourth of the county, or 470 square miles ; principally pine, with 
spruce, fir and oak. 

3. In sections to the individual ; not but one entry by actual sale— I mean those 
lands that should be classed as such, having little or no other value— at not less than 
$2.50 per acre, for the reason that if those timber lauds become the property of the 
people in reasonable quantities the timber will be protected and not allowed, as it is 
now, to be destroyed by shake-makers and other parties, who are fast denuding our 
mountain sides of the finest pine forests the sun shines ont It is a burning shame on 
our government that the timber is thus being destroyed. True, it is not to-day in or 



PUBLIC LANDS. 229 

very near to market, but it will be in a very short time. Sell them, by all means, for 
their own existence. 

5. No. 

6. Sell the land and let the owners look out for fire. 

7. Getting worse every year ; no one to object. Shake-makers worst. Can't stop it 
without the land and timber becomes private property — that is, it won't pay. It will 
be destroyed, if not disposed of. 

8. Cut what you want, and after it is felled, if it ain't in the light place or don't work- 
up to suit you, cut another tree. 

9. I think they would, and if they did not stop it I would turn them out of office. 

LODE CLAIMS. 

1. Personal experience and observation for twenty-five years in the mining regions 
of California and for eight years past procuring patents. 

2. Allowing parties to hold claims and not pay for them, and excepting quartz (if 
known to exist), whether valuable, even not owned, from the patent. This country 
is full of quartz veins that have no mineral value, and are not owned or claimed at the 
date of an agricultural patent. Give the grantee everything in the ground at the 
date of the patent, unless there are adverse claimants. 

3. I would not allow it to be done. Give the oldest locator his lode, with sufficient 
ground adjoining, including all unclaimed veins within his lines, and not allow any 
other location or application to interfere with him, either on top or bottom. Then, if 
a party can't prospect and ascertain the general dip and direction of his mine, it is his 
fault. 

4. The croppings or exposed surface of the vein or lode. Generally they can, with a 
little work most always. That is the reason I would not allow overlappings on the 
surface. 

5. Give him proper time — say at least prior to his making application for survey — to 
ascertain the course of the continuation of his discovery shaft. 

6. Yes, a great deal. The present law confuses the whole matter and encourages 
litigation. 

7. Yes; but being separate on the surface, but uniting at a small depth. 

9. Never to my knowledge. 

10. They do, but not often. I think in a breadth of 600 feet of surface owners would 
be generally safe, and satisfied they could retain the lode within their own ground. 

11. To the disadvantage of bona-fide miners. 

12. B can't claim under the present law ; but A can't enter B's surface for the pur- 
pose of working his lode. He must follow the vein, and may to any depth, though it 
enter land adjoining. 

13. Since a claim becomes abandoned for no work under the present law a great 
deal of litigation has been stopped. The people generally obey the law. 

14. It is possible, but not good policy, in my judgment. Six hundred feet of surface, 
with all the unclaimed veins at the date of the entry, will protect ninety-five out of 
every one hundred in this vicinity. 

15. I have. Slug Gulch district, in this county, and others. Possibly a dozen pres- 
ent ; not necessarily miners, for a man is a miner to-day and next week a farmer, 
Recorder of claims to keep a record of the laws in force and record all locations, &c. 

16. Since May, 1872. Many districts have changed their local laws to conform with 
the United States laws. Among miners their respective rights are generally respected 
whether the law is strictly observed or not. 

17. Yes, by giving notice of a meeting to be held for the purpose. 

18. Not to any great extent. There must be possession and labor done. There is 
but little jumping of claims in this section. 

19. I think it could be. I think by posting and publishing, as now required, all par- 
ties in interest are fully protected. 

20. I think not, for the reason it would be too expensive to litigants to have their 
case transferred to the Land Office, by reason of distance and expense, and leaving the 
whole matter subject to confirmation by the Commissioner and appeal to the Secretary 
of the Interior afterward. 

Yes. As the homestead and pre-emption laws require proof and payment within 
given times, so ought mining land. I have had a great deal of trouble in this re- 
gard. As to time, say one year after filing application for the ground in the United 
States Land Office. 

PLACER CLAIMS. 

1. We are situate in the central or mineral belt of California. Probably one-third of 
the settled portion of this county may be classed as mineral land. Character and na- 
ture generally surface, gulch,, creek, and river, together with a considerable quartz, 
porphyry, seam and vein diggings. 



230 PUBLIC LANDS. 

2. Quite so, by being exclusively engaged in adjusting claims, settling controver- 
sies between miners and rancbers, procuring patents, &c. 

3. Until tte past two or tbree years I could get a patent in a few weeks after final 
entry at the local office. Quartz patents, exclusive of the price of the land, cost about 
$145, as follows : Surveyor-general's office, for office work, $40 ; survey in the field, $50 ; 
publishing, $15; filing in the land office, &c, $15; attorney's fee, $25; this is with- 
out contest ; with contest, no limit, often from $1,000 to $5,000. For the past few 
years but few patents have been issued in this section. The expense for a placer 
patent without contest is $50 ; with contest the expense depends entirely upon the 
Talue of the claim. 

4. About the same as my own. 

5. They are. 

6. In many, nearly all the original mining districts, the local laws regarding origi- 
nal locations of claims have become entirely extinct, and since the survey of the 
mining lands parties having the possessory right to a small claim in making appli- 
cation for patent extend their lines to correspond to the section lines — that is, to 
correspond to the United States law. This is done to save expense in survey and 
further the original location. For instance, would say from " hill to hill," or " to the 
center " of the hill, which is very indefinite, to say the least. Hence it is impossible 
to get a patent on any of the old locations. They are generally relocated, so as to 
correspond to the present law. Record evidence is now required, which is the hardest 
thing to furnish I have yet met with. This order is the last. There is not one claim 
in twenty that has any record title whatever, interests being simply transferred by word 
of mouth, sometimes by simple bill of sale, oftener by abandonment, and to be required 
to furnish abstracts and record title by complete abstract from locators down to ap- 
plicants is simply impossible. In the first place, the great majority of the placer 
mining land in this section has but little value for mineral over its agricultural 
value. Yet the owners prefer, from developments made, or its supposed mineral 
value in the future, to secure a mining title. Now, I would first amend the law so 
as to give a title to everything in the ground not claimed adversely at the date of 
the entry at the local land office, and I would not require any other evidence of title 
than the affidavits of, say, two disinterested witnesses, together with the applicant, 
say as at present, and where no adverse claim was filed allow the party to enter the 
land. This, with the publishing, posting, filing, posting in land office, with affidavits 
as to work, possession, and ownership, &c, is certainly sufficient, as the present law 
requires the expenditure of $100 annually. If that ain't done it gives some one else 
a chance. But the most important points are to amend the present law. First, let the 
present limit as to quantity stand ; 2d, give to the purchaser all there is in the ground,, 
including quartz unclaimed (by adverse filing), at the date of entry at the local office, 
and require the applicant to pay for his ground within one year after applying 
therefor ; 3d, let the patent be issued upon the fact that no adverse claim appeared 
prior to entry, and not require record title. It can't be done. Our placer or surface 
mines have been worked over and over again for many years, and it is only with the 
hope of there being developments made in the hills or deep stratas of gravely that 
attaches any value to those lands except as agricultural, and it is no detriment to 
the emigrant, poor man, or prospector to have all the lands sold, for the time has 
passed when anything can be made at mining except at great outlay of capital and 
labor, and at best it is hazardous in the extreme; while on the other hand all the 
old abandoned and exhausted mines make the best of agricultural lands by filling 
up with sediment and debris, oftentimes in value rising from $200 to $500 per acre, and 
many mining patents already issued are being cultivated by those buying for agri- 
cultural purposes. One fact certain is that the owners are going to and do now use 
their lands for the purposes they are most valuable lor. 

7. Sometimes they are, for the reason it gives a better title, and is more satisfac- 
tory to the owner, under the idea that there might be discovered deep diggings, or 
from the fact that they had in years gone by coutained rich surface mines, and also 
from the fact that the said lauds would be returned by the surveyor as mineral 
land. And another reason is, thoso applications are geuerally made on odd sections 
inside of the Central Pacific Railroad grant, through fear that if the company got 
the land they would charge exorbitant prices for it. 

8. It has not as a rule. There may sometimes be veins in the surface known only 
to the applicant, but they have no value without development, and then the party 
holding the land ought to have them. 

9. I do not ; because our State law provides for the working of mines by easement, con- 
demning adjoining land, the right of way, Ac, which can always be obtained by law 
when the right desired cannot otherwise be obtained. 

The great trouble and expense now upon those seeking to get a patent to their land 
for agricultural land is the order requiring additional proof required as to the mineral 
character. This is dene by t he Commissioner after the land has been paid for, notice 
published and posted, and evidence taken on blanks furnished by the government, and 



PUBLIC LANDS. 23 X 

no contest of any kind appearing, the title should pass and not require the applicant 
to go all over the form again, costing him nearly and oftentimes more than he pays 
the government for the land itself. I have known of many instances, in fact it is the 
exception in place of a rule, that a man cannot get a patent unless he goes to the office 
with his witnesses two and sometimes three times, and has to publish and post notices 
over and over again, until people in this vicinity have almost despaired of ever get- 
ting title at all. Now when a man has substantially complied with the law and satis- 
fied the local land offices and makes his entry, where no kind of contest appears, do 
give him a patent. 
Kespectfully, 

THOMAS WASEB. 



Testimony of Stephen C. Wheeler, of Plymouth, Amador County, Cal. 

Answer to questions submitted by the Public Land Commission. 

1. Stephen C. Wheeler ; Plymouth, Amador County, California ; farmer and miner. 

2. Twenty-seven years. 

3. I have not. 

4. By acting as counsel to procure title under pre-emption and homestead laws. 

5. Under the pre-emption laws ; ninety days' residence, thirty days' publication is the 
minimum. Patent issued in from three months to three years. Uncontested. Two hun- 
dred dollars improvements ; issuing six citations, $b' ; taking proofs, register's fee, $10 ; 
counsel fee, $5 ; payment for land, $200. Contested cases are seldom decided and ap- 
proved in less than six months, and often nothing is known by the claimants for two 
and even three years. Contests cost from $100 to $1,000. Often the land is less in 
value than the cost of contest. 

6. Only as to taking proofs and evidence. It is very expensive to take witnesses 50 
to 100 miles to the United States Land Office and keep them there from two to ten days 
in contested cases. The county judge should be authorized to take the evidence in 
all contested cases. The simple proofs,, both in pre-emption and homestead, should be 
taken before the nearest justice of the peace or notary public. 

7. The " foot-hill " region consists of one-half agricultural, two-fifths pastoral, aud 
the remainder mineral, all containing timber in limited quantity. The higher foot- 
hills, 2,000 feet above the sea-level, and from that elevation up to 6,000 feet, contains 
all the really valuable timber on the western slope of the Sierra Nevada Mountains. 

8. Judging from actual knowledge, obtained by a thorough acquaintance with the 
physical character of the foot-hills and mountains on the western slope in Amador, 
El Dorado, and Placer Counties, I am of the opinion that it will be impracticable for 
the government to attempt to ascertain and fix the character of the classes named 
other than by a general rule, and that rule to be unoccupied land belonging to the 
government. 

9. l£o practical advantage can be gained by adopting any other method of land-par- 
celing surveys. The one now in use is plain and easily understood and by it every 2£- 
acre lot in the whole State can be designated. What more is needed in that respect ? 
The different " classes " are so irregular in occurrence that it would be impossible to 
classify only by a general rule. 

10. No better method of disposing of the agricultural land here is needed. Pastoral 
and timber lands unoccupied should be disposed of by private entry ; pastoral by sec- 
tions and timber by quarter section, limiting the purchaser to four sections of the former 
and one of the latter. 

Stockmen during the month of May drive their herds eastward to the mountains 
where green feed is found during the summer months. By securing title to a choice 
quarter section of land by pre-emption the stock owner secures a home during the sum- 
mer months and his cattle, horses, sheep, or goats roam at the will of the herders over 
the surrounding vale and mountains consisting of government lands. During the month 
of October the stockmen return with tbeir herds to their homes in the "foot-hills" or 
valleys. This move is rendered necessary on account of the severe snow-storms that 
occur during the winter months, especially above the altitude of 3,000 feet. Let this 
land be offered at private entry at $1.25 per acre, by the section or otherwise. 

AGRICULTURE. 

1. The climate 40 miles east of Sacramento is dry and warm from April to October; 
temperature from 50° to 110° as the extremes; generally from 60 c to 80°, varying from 
those two points every twenty-four hours.. This point has an altitude of 1,400 feet : as 
you proceed eastward' the climate changes and the greater the altitude the lower the 
temperature. Snow seldom falls at this altitude ; 15 miles above this snowfalls to the 
depth of two or three feet, and 50 miles above or eastward it often reaches the depth 



232 PUBLIC LANDS. 

of 10 feet, sometimes 20 feet. Rainfall varies from 15 to 50 inches annually. Rainy 
season usually begins in November and continues to April. Three-fourths of the rain 
usually falls in December and January. The supply of water for irrigation is limited, 
is owned by corporations, and used for propelling power and mining. 

2. Usually the first rains occur during the latter part of October and seldom ex- 
ceeds 1 inch, then we have clear weather or Indian summer extending into the first 
half of December. Then light rains for a few days, then cold, frosty weather or cold 
rains throughout the month, temperature going down as low as 32° during the night 
and rising from 50° to 60° during the day in clear weather. January is generally the 
month of greatest rainfall. February is generally a wet month, but the rains are light 
and come often. March is cloudy and windy, with occasional light rains. Next comes 
the April showers, warm and pleasant and liable to come at any moment, often from 
an almost cloudless sky. May and June are sometimes dry months throughout, some- 
times furnishing from 1 to 3 inches of water, but variable. July, August, and Sep- 
tember all sunshine. The melting snow in April and May gives plenty of water, which 
passes by. June, July, and August are the months when irrigation is most needed and 
when the water supply is short, very short. 

3. Wheat, barley, oats, and rye can be raised without irrigation, and early potatoes. 

4. All kinds of vegetables and fruit, except grapes, require irrigation. 

5. Fruit and vegetables. 

7. The Cossumnes and Mokolumno Rivers and melting snow. 

8. Not to exceed 3,000 feet for cereals. Potatoes and hardy vegetables and apples 
and plums can be grown at an altitude of 5,000, but not successfully on account of late 
frosts. 

10. The whole amount of natural water in the streams during the dry season is owned 
and controlled by mining corporations under State laws. 

13. It is not, as most of the pasturage land is, high up in the mountains where fam- 
ilies cannot reside in winter. And further, no person desires pasturage land unless he 
owns the herds to make it available ; and if he owns the herds he is able to buy the 
land. 

14. It is undoubtedly the best policy to put these lands (pasturage and timber lands) 
into the market for private entry and limit the quantity to each purchaser. 

15. Pasturage land in any one locality will not raise beef for market. Food is re- 
quired during the winter months for all kinds of stock except goats. Stockmen have 
farms in the lower foot-hills and valleys where they raise feed and keep their stock 
from October till March by feeding. In March there is green feed there, and the stock 
thrives on that till May, when the feed dries up, and they start with their stock for the 
mountains, where they find green feed till October comes again. And this is the class 
of men that will be forced to buy if the land is open to private entry. 

16. Ten head of good cows will support an average family if the family owns 160 
acres of land to raise feed to keep them during the rainy season. Pasturage land here 
will not keep stock in good condition the year round. 

17. From 30 to 40 in this locality. 

18. It has diminished more than 50 per cent, in 20 years. 

19. Cattle-raisers do not fence their ranges as a ruie. • 

20. " Specific ranges," in the same locality, would not support stock the year round. 

21. Never- failing spring of good water. 

22. Ten head, where large bands are kept together. 

23. It has diminished materially. 

24. Cattle will not graze where sheep are kept. 

25. Conflicts on pasturage land are generally settled by mutual consent, as stock- 
men are all trespassers, depending entirely upon the government pastures to feed their 
stock at least 6 months in each year. 

26. Five thousand head of horned cattle and 25,000 head of sheep and graded Angora 
goats, in herds of from 500 to 2,000. Stockmen who reside in many of the valley 
counties depend upon the mountain pastures for stockfeed during the summer months, 
driving their stock 100 miles or more. 

27. No suggestions, only those already stated. As to surveys, it is best to let " well 
enough alone." 

28. None, to my knowleego, and have never heard of any. 

TIMBER. 

1. The timber here consists of half a do/en Bpeoies of the oak, and in only valuable 
for firewood. All the land not cultivated is covered with a seal 1 eriug growth of scrub- 
oak. 

2. The really valuable timber grows above the altitude of 2,500 feet, and the lower 
limit is ten miles east of here. 

3. Offer them at private entry at $1.25 per acre by quarter section, and not in smaller 

. limiting the purchaser to one section. 









PUBLIC LANDS. 233 

This plan will, in my opinion, put a stop to the destructive depredations of " timber 
jumpers." Private ownership is really the true method to adopt, and any change in 
the law which will conduce or hasten to this end will he a great benefit. 

4. I would not classify, other than offering all the "timber lands" above the limit 
of 2,000 feet altitude at $1.25 per acre, in tracts of not less than quarter sections. 

5. There is always a second growth where timber is felled, but forest fires are very 
destructive in forests of small pines. And if owned by individuals, such precautions 
would be used as to make destructive fires of rare occurrence. Pine timber will grow 
to the height of 20 feet and 6 inches diameter at the base in twenty years. 

6. Forest fires almost always originate in the carelessness of campers or hunters, and 
not by stockmen or timber-jumpers. Forests that have not been felled and remain 
in their native state are not much damaged by fires. The greatest destruction in forest 
fires is caused by the felling of choice trees here and there in the forest, using the 
choice part and leaving the remainder on the ground. This, during the dry season, 
feeds the fire and creates an intense heat, sufficient to destroy every tree in the forest, 
not consuming them, but destroying life, leaving them standing monuments of de- 
struction. 

7. The depredations on public timber have been made for the purpose of securing 
timber for mining, building, and agricultural purposes. Along the lower belt of tim- 
ber, extending into the timber where easy of access with teams for five to ten miles, 
the timber is entirely removed, and timbermen are continually extending their en- 
croachments. Some of the largest quartz mines in this county require at least 2,000,000 
feet per annum for their successful working. As an approximate estimate, there has 
not been less than 10,000,000 of feet of public timber cut and used in Amador County 
for the five years last passed per annum, and the demands are increasing continually. 
For many purposes where split timber is used at least one-half is left to decay or to 
feed fires to destroy that which is left standing. 

I can state positively that one man in Amador County, with the authority of the 
government to back him, who is well acquainted with the locality, can put a stop to 
this unnecessary waste. Let Congress authorize the appointment of an agent at a 
salary of $5 per day while actually engaged in watching the roads leading to the tim- 
ber, with authority to make arrests and subpoena witnesses, &c. But by all means 
keep everything of this character out of the hands of registers and receivers. Three 
months in the year would suffice, as the timber- cutters must do their work early in 
the dry season. 

8. The only local custom is to cut the timber wherever you find it unoccupied. The 
right of the party who fells the timber is unquestioned. 

9. Judging from past experience in the district land offices, I would say by all means 
keep it out of their jurisdiction. 

The manner in which land affairs have been managed in the Sacramento land office 
has earned for it the name of a fraud and a swindle, and we often hear that name 
applied to it. I do not say from my own knowledge that such is the case. But no 
man who has been a register could be elected as Congressman ; or, in other words, it 
is an unpopular institution with the masses. 

LODE CLAIMS. 

1. I have been engaged in mining for 15 years since residing here, half the time in 
placer, the remainder in quartz or lode mining, in almost every capacity connected 
with practical mining. I have had no experience as a mine surveyor other than what 
is necessary in the practical working thereof. My experience in litigation only ex- 
tends to contests as to mineral vs. agricultural. 

I shall not attempt to answer from question 2 to 14, as I consider them " theoretical, 
and not practical, in this locality. No litigation of that kind, to my knowledge, has 
ever occurred in this locality. " True lodes" are not continuous. No practical " rule " 
can be adopted to meet the demands of an " irregularity." I cannot better define " an 
irregularity" than by explaining that it is a " lode" or "rock in place," bearing the 
precious metals, even in the most favored locality. 

15. I have assisted in forming Indian Creek mining district in 1853, Puckerville 
mining district in 1860, Plymouth in 1879 ; was elected recorder in both the former 
districts, to serve for one year. The first was done by about 60 actual miners, the sec- 
ond by about 40, and the last one by 25 miners and citizens. The recorder was the only 
officer elected after the temporary organization. Five miners, under the adopted laws, 
could call a meeting, by posting notices for 10 days, to amend, or elect a new recorder. 
The duties of the recorder were to take a copy of the notice posted on the claim describ- 
ing the metes and bounds and the names of the locators, and make it matter of record 
by copying verbatim in a book provided for the purpose, open for inspection on 
demand by any miner. All three of the above mining districts are located near the 
northern boundary of Amador County. 

16. Post a notice on each end the claim, width not specified, but including all the 
dips, angles, and spiTrs of the lode claimed. One hundred, feet was the length of claim 



234 PUBLIC LANDS. 

allowed in 1853, double to the discoverer. In 1860, 200 feet for each locator, double that 
length for discovery, and in 18T9 we adopted the law of Congress of April 10, 1872. 

17. The record is only proof of the original location or amended location, nothing more. 
In case one year elapsed without performing the required amount of labor the locator's 
rights were forfeited. After that time, when the original locator found the claim un- 
occupied, he could relocate and amend. No provision in the law for other amendments 
by locator or recorder. 

18. Never, to my knowledge. 

19. Miners in California no longer need local mining laws. Their time has passed. 
As to all future locations abolish them at once. 

20. There is no justice in allowing one class of claimants privileges that others are 
barred from. Keep them out of the courts and in the land office until decided. 

21. The United States mining laws are partial in effect, giving the mineral claimant 
rights properly belonging to the agricultural claimant — allowing mining locations 
inside the inclosure of the latter claimant, also placing the burden of proof with the 
agricultural claimant. I have known great injustice done to the latter class of claim- 
ants. For instance, in 1856 A, while placer mining, discovers a rich seam or lode of 
quartz, on which he makes a location and commences sinking a shaft and taking out 
rock. He works this seam to the depth of one hundred feet and takes out $10,000, when 
the seam enlarges to a ledge of five feet, but fails to pay the cost of working and is 
abandoned. B, in 1876, desires to homestead the land on which the abandoned claim 
is located. B files his homestead declaration, and improves the land, erects his dwell- 
ing near where the shaft of A is located. At the end of five years B desires to make 
proof on his homestead. A appears and proves that there is rock in place bearing gold 
on the premises, and B is not allowed to purchase the land on which his dwelling 
stands. Yet the mineral claimant will not purchase, because he can, under the present 
law, hold it without. 

22. Hundreds of claims are located and worked out and abandoned under the pres- 
ent law. Many claims are held for speculative purposes, and government title is not 
desired until the locator finds a purchaser. Possessory titles should be limited to one 
year. This would remove one of the principal causes of contest between agricultural 
and mineral claimants. The location of a mining claim is no proof that the land is 
mineral in character. 

PLACER CLAIMS. 

1. About 5 per cent. 

2. Promiscuous distribution. 

3. Time, six months to two years ; cost, $110, exclusive of the land. Contested cases 
from two hundred to one thousand, often more. 

5. In general, good enough. 

6. I know of no litigation between mineral claimants. 

7. They are not. 

8. Not to my knowledge. 

9. Nothing of the kind. 



Testimony of J. H. Wildes, at San Francisco, Cal., chief draughtsman , office surveyor-gen- 
eral of California. 

Examination of J. H. Wildes, chief draughtsman, office surveyor-general of California, 
at San Francisco, October 9, 1879, by Messrs. King & Britton. 

(When avoidable, the questions which elicited this statement are not inserted, but 
their tenor can be perceived from the character of answers given.) 

There are three principal initial points for meridian and standard lines in California ; 
one at Mount Diablo, another at San Bernardino, and one at Humboldt. These were 
all connected with the Coast Survey lines in early days, and are supposed to be correct. 
I don't know how they were located. 1 have no personal knowledge of these standard 
and base lines when projected for considerable distances, but they are generally con- 
sidered accurate. I have no knowledge of any trigonometrical or astronomical tests 
having been made of the accuracy of distances measured by them. 

If properly executed, I think the present system of contract service for townshiping 
and sectioniziug is sufficiently accurate for practical purposes, and that the fair execu- 
tion of the system will mark township and section corners in a permanent manner. My 
opinion is that the township corners should be marked in a more permanent manner than 
they now are. As it is now, there has some times been difficulty in finding them, but I 
cannot state cases. 

I am not prepared to say exactly whether it is practicable by the methods of sur- 
vey now prescribed by law to got an actually correct line — say east and west— as long 



PUBLIC LANDS. 235 

as 100 miles ; but I believe that by careful chaining and the proper use of the solar 
compass such a line can be established within the limits fixed by the General Land 
Office for errors. 

Where connections have been made which brought standard lines together town- 
shiping from one standard line to another, the result has been that the distance be- 
tween the standards have been too short in some cases and in other cases too long. I 
do not remember whether, there have ever been, or have not been, close connections 
made between such lines. If, in cases where these connections were found to be incor- 
rect and the corner posts were obliterated by accident or design, a man's claim affected 
by those corners could be re-established by measuring the distance between stand- 
ards, say from any initial point, or if all corners were obliterated, by havingrecourse to 
the field-notes of the survey used in the first survey. In that case we would have to 
follow those notes. 

Question. Is it possible for two men to chain 20 miles of irregular country at differ- 
ent times and arrive at precisely the same results ? — Answer. No, it is not. 

Q. Therefore, if you undertook to run out a claim from such data you could not hit it 
the second time ? — A. Well, measuring between two points twentymiles apart in that 
way there would inevitably be a difference in chaining. No two surveyors can run 
over the same ground and give precisely the same results. The discrepancy between 
the two would be based upon errors both of measurement and of direction ; most likely 
on errors of measurement. Therefore, since it is impossible to make the same measure- 
ment twice, it would not be practicable to exactly relocate a lost claim of any kind in the 
absence of permanent monuments. They might be more permanent perhaps, but those 
nowused — as peaks, trees, andpoints of junction of streams — are reasonably permanent. 
I think we might reasonably expect to find some of them and that, while difficult, such 
relocation could be made even on the San Joaquin plain. In speaking of a peak I mean 
that two men could get the same observation from it if there was a monument there 
to localize the spot. Those things are always considered sufficiently accurate, so far 
as the relocation of the original point is concerned. 

Q. As I understand you, chaining is admittedly inaccurate and that by that method 
no two men can reach exactly the same point. The only other mode you have for cor- 
rection is by taking those bearings you have described. I ask you now what rule have 
you for locating that point ? Wha.t does it amount to in an approximate location ? — A. 
I consider the cases extremely rare where you could reach exactly the same point. 

Q. Suppose the location only valuable for a spring which occupied a space of four 
feet square. Would you under ordinary circumstances, monuments being obliterated, 
be able to establish definitely by a second survey whether that spring was or was not 
in the original survey? — A. I think I could establish whether it was within a certain 
quarter section or a certain quarter of a quarter section of land. 

Q. But if the spring be located within three feet of the boundary ? — A. That is an 
amount of accuracy to which we do not pretend and which the surveyor's contract does 
not require. In other words we could not in that case made so accurate a survey but 
what the value of the possession might be thrown the other way by an error in the 
second survey. 

Q . In the case of a Spanish grant, having one boundary line upon a stream, have 
there not been some instances where the initial point of survey was at some distance 
from the stream that the resurvey of the grant has withdrawn the grant from the 
river and shut it off from the water ? — A. I cannot recollect of any such instances at 
this time, although I cannot say that they have not occurred. 

Q. Do you remember the Boca de la Plaza grant ? Does not the diseno call for the 
boundary along the stream ? — A. Not to my recollection. 

(Note. — The plot of survey was referred to, but examination disclosed it was not 
the case Mr. King referred to.) 

Q. What I wanted to get at was whether in all cases, the monuments being obliter- 
ated, you could be sure to reproduce the original claim by resurvey? — A. I think we 
could, absolutely. For instance the Spanish grants are different from the public land 
system. The distances are generally given from the river, and if the river should 
change its bed, still by having the proper variation we can go on and rerun the lines- 
and by coming around to the initial point again we could calculate very nearly. 

Q. Practically, how do the resurvey of the Spanish grants agree ? Have you had 
occasion to resurvey a good many of them? — A. Many resurveys of ranches have been 
made for changes of boundaries, but I remember but one made for alleged errors in 
survey, which were found in both bearing and length of several courses. 

Q. In the case of mineral monuments, what are they related to in this State ? — A. 
They have no relation to anything. They are arbitrarily placed in different districts, 
and the connections are made with them. For instance, in the case of a subdivided 
township, where we can connect within a certain distance with a public corner we do 
so, but otherwise we have to establish arbitrary monuments. 

Q. What error do you admit in chaining ? — A. We admit fifty links to one mile. 

Q. Do you admit the same error in the connection of mineral surveys ? — A. We do. 



236 PUBLIC LANDS. 

Q. Do you. know instances in this State where surveys of mineral claims under 
different contracts have overlapped ? — A. We have had such. 

Q. What was the cause of that? — A. In the cases I remember there has been con- 
flict of ownership. 

Q. And do you know of any instances in which a contest has arisen from an errone- 
ous survey ? — A. We have no such cases as that. Where we find that there is a con- 
flict arising from a cause like that, we send the survey back to the deputy and call 
for a correction. 

Q. How do you know which of his surveys is the correct one ? — A. We cannot tell. 
It must be established by proof before the register of the proper land office. 

Q. What possible proof can be made as to the correctness of one survey over 
another ? — A. There is none that I am aware of, except the sending of a third party 
to verify it. 

By Mr. Britton : 

Q. Upon the hypothesis that your mineral monuments are obliterated, how can you 
locate a' mineral survey? — A. I do not know of any method of doing it unless the 
position of the mineral monument is fixed by triangulation from some well-known 
point. You might locate it by taking the confluence of streams, but that too would 
be very indefinite, unless you established there a mineral monument by inserting an 
iron bar at some definite spot. 

Q. That would not be very definite, as it might be removed. The claim might lie in 
a country like the San Joaquin plains. How then? — A. There would be no possible 
means of re-establishing a survey there. 

Q. Suppose the mineral monuments and those of the claim were all gone, and there 
had been no triangulation to known objects, what chance would you then have of re-, 
tracing the survey ?— A. If the mineral monuments were gone ; if there were no ob- 
jects of reference locating mineral monuments, you would have nothing to depend 
upon except such topographical features as are furnished by the field-notes. 

Q. Suppose in an isolated region you establish a mineral monument, measure to the 
corner of a claim, and then measure the claim, what check, aside from the mere chain- 
ing, have you on the general measurement ? — A. None, except the course and distance, 
and the topographical notes of the survey. 

Q. Are not the mining districts very often in rough country, with precipitous and 
abrupt slopes ? Do you regard chaining as an adequate method in such cases ? — A. 
Yes, I do, as chaining can be combined with triangulation if necessary. 

Q. Do you suppose you can make 100 chains in a rough country with approximate 
accuracy ? — A. Yes. I do not remember of any difficulties having arisen in this State 
owing to defects in the methods used in our surveys. I do not know of any legal con- 
tests having arisen because of there being defects in our methods, or that they have 
ever been called into question at all. There are cases in which erroneous surveys have 
been charged, but I do not know to what those erroneous surveys are attributed. I 
know that charges of erroneous surveys have been made against surveyors, but such 
matters do not belong to or come before this part of the office. Some township sub- 
division surveys have been set aside by the Commissioner as fraudulent ; but I do not 
know what was the fraud charged. His decision, if made known, was communicated 
to the surveyor-general. In cases where we find an overlapping either way in platting 
the field-notes, we send the survey back to the deputy for correction. Also, where 
clerical errors or those of calculation are discovered we send it back, informally, for 
correction. 

Q. What means have you for knowing that his second is more correct than his first ? — 
A. We have no means whatever. It may be a correction on paper merely. We have 
no information beyond that contained in the papers before us. If the survey proves 
to be mathematically correct wo have to accept it. I do not know all of the surveyors 
personally. If the surveys appear to be correct we in this office have no criticisms to 
make about them. 

I have no means in this office of telling whether or not a survey has actually been 
made to the extent of swearing to it. It is like this : I am sitting here in the office 
and a survey is brought to me to have plotted and examined. Never having been upon 
the ground I cannot swear that it has been made. If it is mathematically correct and 
if it closes I have to accept it. It is not open to my criticism, and all other matters 
pertaining to it have to go before the surveyor-general. It is therefore, to answer your 
question, entirely within the power of a contractor to return a set of field-notes math- 
ematically correct when the whole survey was made on paper, and not in the field at 
all, and the only moans of detection I would have would arise from knowledge pos- 
sessed by the ollico of the topography as known from other and outside data, which 
memoranda did not agree with the survey in question. We would return his survey 
in that case and say it could not be corroct. Our only chock is that obtained from 
whatever official and accidental data wo may have of the neighborhood. That data 
is equally accessible to any contractor who might wish to prepare fraudulent notes, as 
ho must come into the office to find out what lines have been run in the field. I think 



PUBLIC LANDS. 237 

a man could go into a tract of country, and. haying some knowledge of its topography, 
construct a set of field-notes that, in the absence of inspection in the field and data in 
the office, we would have to accept. I think there should always be inspectors to go 
into the field and inspect surveys. It should have been so from the first. I have had 
no occasion to know personally about the surveys in San Bernardino County. 

As regards the expediency of employing salaried surveyors rather than having the 
work done by contract system, I think the contract system, if properly carried out, 
preferable at this stage on the ground of economy. I think if a system of having a 
salaried corps of surveyors had been initiated from the first it would have been far 
better ; but now as we have got to surveying in a mountainous country I doubt if such 
a corps could carry on the vvork as economically as it can be done by' contract. Con- 
tracts in such regions do not afford large profits at present rates, and small contracts 
sometimes result in a loss. 

There may be more unsurveyed than surveyed public land in some States, but it is 
not so in California — I mean land fit for agricultural purposes. The larger part of the 
timber belt, which is about 500 by 60 miles, remains unsurveyed ; but out of about 
100,000,000 acres only about 40,000,000 remain unsurveyed, and it is a very difficult 
question to answer what part of that is serviceable or available for agricultural pur- 
poses. 

I do not approve of contracting for the expenditure of the money appropriated 
for surveys without an inspection as to the character of the land, to serve as a guide 
in giving contracts. While I have no fault to find with the contractors at present and 
recently employed, and while I have no reason to think that in the past three or four 
years the work has not been well done, I think that an additional appropriation, 
made exclusively for the careful examination of surveying work, would improve its 
character. There have been one or two instances where the work has not been well 
done, perhaps, but we have generally employed the right kind of men so far as I 
am aware. The only check upon surveyors is their oath. I am not aware of any 
other species of work done by government or private corporations in which the 
simple affidavit of the contractor is taken without criticism or inspection. My ex- 
perience before coming here was that of a civil engineer in charge of public works 
in the North and South, and in conducting such we were always required to measure 
and inspect the work. I think there should, be a salaried inspector for surveys. 

There have been a number of surveys rejected during the past year. Some seven 
different townships surveyed under the Glover contracts were rejected and some three, 
I believe, under the Hansom. That contract was canceled. I do not know the reasons 
that influenced those rejections. 

In the draughting office we know nothing of the work in the field, and all you would 
get here would be criticism on the mathematical accuracy of the notes returned. 

There was an inspector sent here from Washington this year, as I understand, about 
some surveys the contract for which had been suspended, but I know nothing about 
his reports. We have nothing to do with any part of the surveys in this office but to 
examine the field and mathematical notes and papers. The rest of the work is done 
in other parts of the office. It is my outside opinion that an inspection in the field 
should always be made, irrespective of that instituted here of the field-notes. It is 
done in all other departments of the government. 

If this office were furnished with object points, permanent and well defined, and 
knew their actual positions in the country to be surveyed, and with which surveys 
were to be connected, it would be a direct check upon the accuracy of surveys accord- 
ing to the rectangular method, and at the same time would facilitate the construction 
of a correct map of the State. 

The surveying manual requires that the solar compass, or some other instrument of 
equal utility, be used wherever the variation of the needle is not uniform. I have no 
means of knowing what deputies use them. When I first came into the office survey- 
ors would come to San Francisco and test their chains by the standard in the office. 
That was fifteen years ago ; since then I have not seen anything of that kind done. I 
cannot swear that they still correct their chains by the standard or not, but presume 
they do, as the law requires the deputy surveyor to have with him a standard measure. 
The best deputies we have use the solar compass, taking their variations at the town- 
ship and section corners. I know a good many deputies capable of surveying by tri- 
angulation. 



Testimony of O. M. Wozencroft, of California, relative to agricultural lands. 

The questions to which the following answers are given will be found on sheat fee- 
ing page 1. 

Public Land Commission : 
Gentlemen : I herewith submit answers to some of your interrogatories. 



238 PUBLIC LANDS. 

1. My name, O. M. Wozencroft, residence California, occupation physician. 

2. Have lived in California thirty years. 

3. I have sought to acquire title to the desert lands known as the Colorado Desert, 
formerly the bed of the Gulf of California, under no existing law ; but the act of Con- 
gress donating land to the State requiring capital and labor for their reclamation may 
be cited as a precedent, the general utility and common welfare a sufficient motive 
for the cession, as it is my purpose to irrigate those lands now barren and unproduc- 
tive, and by cultivation make them fertile and productive. That it may not be con- 
sidered a subsidy, I have agreed to pay the government the present appraised value 

of them. 

* * * * * * * 

7. The conformation of those lands is an inclined plane from circumference to center, 
with a gradient of near four feet to the mile, all of which being lower than the Col- 
orado River, at a point eight miles below the junction of the Gila, and the extreme 
depression some 270 feet lower than the ocean level. The physical character — a hard- 
pan basin devoid of all vegetation, on which the sun's rays play and by which the at- 
mosphere is arid and excessively hot, 135° Fah. in summer ; this arid, overheated at- 
mosphere causing violent currents of wind, the heavier and colder bodies displacing 
the lighter heated air, and this arid atmosphere is carried to the surrounding country. 

AGRICULTURE. 

1. The climate, hot and arid ; there is but little rainfall. There was but !.-£• inches 
in 1877-78, when 52 inches fell in the upper part of the State. Length of hot season, 
eight months. No snowfall. 

2. The supply of water for irrigation is ample, from the Colorado River. The river 
is at its highest stage in June, a time when the most water is required for irrigation. 

3. No portion can be cultivated without irrigation. 

4. About 1,000,000 acres by irrigation. 

* * * * * * * 

7. The source of supply of water that could be applied to irrigation is all of the 
western slope of the Rocky Mountains between parallels of latitude 41 and 31. This 
great water-shed affords ample supply for the purpose of irrigating this basin. 

8. The fertility of soil, instead of being impaired by irrigation, is materially im- 
proved by surface water carrying silt. 

* * * * * # . * 

10. The water has not been taken up on any portion of the above source of supply, 
so far as I know. 

11. And consequently there can be no conflicting water rights. 

******* 

14. It will be impossible for the government to dispose of any portion of those 
lands by private entry, for the simple reason that the irrigating canal will be some 
150 miles in length, will require a large outlay of capital, and must necessarily be 
under a general system and management, by which means alone can this formidable, 

valueless desert be removed and made productive. 

* * ***** 

27. I have no suggestion to offer in regard to the disposition of public lands other 
than this portion, and merely wish to say that, in making the disposition of it as stip- 
ulated in the bill now pending before Congress, the government has all to gain and 
nothing to lose ; and it is the only disposition that can be made of it, without the gov- 
ernment will expend the money and do the work. This measure has received that 
attention from the various committees on public lands which its importance demands, 
recommending its passage, and doubtless would long since have passed Congress had 
not the members been so pressed and importuned by their constituencies in private 
measures that a measure of general national importance is passed over. It is to be 
hoped that your Commission will investigate the merits of this measure and make a 
report which will be so- authoritative as to induce Congress to act advisedly and 
promptly in making a disposition of this desert alike creditable to government and 
beneficial to her people. 



Testimony of O. If. Wozencraft, of San Bernardino, taken at San Francisco, Cal. 

O. M. Wozencraft, of San Bernardino, testified at San Francisco, October 8 : 
I lived here thirty years. I think that four classes of land is a proper classification, 
mineral, agricultural or irrigable, pasturage, and timber land. My ideas about tim- 
ber land would not be as authoritative as those of the gentleman to whom I listened 
yesterday and to-day. I have been over every part of the State, and am conversant 
with the physical geography of the State. The statement of the gentleman who pre- 



PUBLIC LANDS. 239 

ceded me is quite correct ; and in reference to the timber belt in parallel 41, 1 would say 
that there is a very valuable growth of white oak, which is about the only white oak 
I have noticed in the State. There is a white pine in the same belt. It is valuable 
for all our timber purposes. It is not generally known that this belt is there. I ex- 
amined it some twenty-five years ago. How far south of that valley this timber 
extends I do not know. The elevation could not have been over 2,000 feet, if that. 
As to the extent of timber, I can corroborate the statement made by the gentleman 
who preceded me. The pine and redwood which exists on the coast range from below 
Point Concepcion runs up entirely to the Oregon line. I have no idea how much has 
been destroyed by fire. I can't conceive that but little of the live timber would be 
destroyed by fire. The timber lands are valuable chiefly for timber purposes. They 
have some slight value for cultivation in the valley. I think that any system that 
will preserve the timber from wanton destruction would be very desirable. What 
that system would be I am unable to say. I have not considered the matter suffi- 
ciently for that. I think there should be some obligation on the part of persons 
owning the timber that they should plant trees, so that there should be a reproduc- 
tion of them. 

Question. The irrigable lands, as we have defined them, are limited in extent, are 
they not ? — Answer. Well, there is a large body of land that could be irrigated if we 
had the water to irrigate with, but there is a great scarcity of water. There is a large 
body that can never be irrigated. That does not apply to any of the lands in Tulare 
or San Joaquin Valley. But there are lands still below there that can never be used 
for other than pasturage lands. 

Q. Are these irrigable lands valuable to actual settlers in small quantities ? — A. I 
conceive that the available lands that can be cultivated without irrigation in this State 
have all been taken up. I do not know of any not utilized. I think wherever irri- 
gation is possible by small settlers, the water has already been taken up. I think.that 
all the lands in the small valleys of California have been taken up under the desert- 
land act. There are large tracts to which the waters of the larger streams can be 
taken by the outlay of much capital. 

Q. What disposition would you make of the pasturage lands? — A. The pasturage, 
where there is not water for irrigation, will, I conceive, have to be disposed of in large 
quantities, otherwise they will not be remunerative for stock-raising. In the early 
days we had some very valuable grass lands here ; among the most valuable was the 
California clover, but now there is little or none in the State. In early days we passed 
through valleys so matted down that it was difficult to ride through them, but now it 
is hard to find any such in the State. This is the case with many other grasses, which 
have been eaten out by the sheep and any other stock. I think if a man was able to 
protect his grasses by fencing, he could keep them up and protect them. In my opin^ 
ion the custom of pasturing stock without any restriction has tended to destroy the 
grasses. This indiscriminate grazing has destroyed them, and it will require another 
generation to replace them. 



San Francisco, October 16, 1879. 

A. W. Yon Schmidt, resident in California, deputy surveyor and civil engineer, tes- 
tified as follows : 

Question. Have you any suggestions to make about arable lands? — Answer. In regard 
to the arable lands, I do not think I would change the present laws at all, except to 
consolidate the homestead and pre-emption law. And I would let the mineral go with 
the land. There is a great deal of this land called foot-hills that contains a little gold, 
but it is not rich enough to work for mining purposes alone. Up to this time a great 
deal of this land has been taken up by persons who want to make homes, and they 
may not want to have their fields torn up or damage done to their farming operations. 
That portion of the land is generally found near or within a short distance of the 
foot-hills. I would restore the mineral lands along the foot-hills to pre-emption and 
homesteads, for the reason that it is not rich enough for mining purposes, and the 
little mineral there is interferes with a man's making permanent homes upon this 
land. They are afraid of being interfered with by persons who are engaged in mining. 

Q. What about the timber land — what is the best method of preserving it ? — A. Our 
people as a general thing here think that they have the right to get wood whether 
they own the land or not, and that they have the right to cut the timber just when- 
ever they are disposed. I do not know of any means of protecting that timber without 
you place a man with a shot-gun at each tree. My idea is the timber should be sold 
with the land in reasonable quantities. I know of no way by which the government 
can protect the timber land. I think it would be better to allow it to pass into the 
hands of private owners. They will protect it better than if it belonged to the gen- 
eral government. 



240 PUBLIC LANDS. 

Q. That is the present system, is it not? — A. I believe so, to this extent, that there 
were some people appointed by the government to look after the timber land, or such 
lands as belong to the government. This was the case, I understood, some time ago. 
I do not know whether that law has been abolished or not. 

Q. At present, can a man go and make a homestead of 160 acres and make a pre- 
emption of 160 acres more ; is this sufficient for timber purposes ? — A. Yes ; I think 
that is sufficient. The great, difficulty is to keep timber from getting into the hands 
of monopolists, for the reason that a man will pre-empt a claim and sell out his pre- 
emption. It is a very difficult matter to settle the timber question. These persons 
take it without any intention of completing the title. I have known instances where 
parties have gone out in the interests of other men and put up little cabins and located 
homesteads, and when the title was procured they turned it over to a speculator. 

Q. Are these timber lands valuable for agriculture to any extent ? — A. There are two 
or three different kinds of timber land. I speak only of the timber being cut. 

Q. I referred to the timber at the south now, where there is slight rainfall. — A. I 
am speaking of the timber generally in the Sierra Nevada Mountains. The sugar- pine 
timber is very much sought after, for it is worth from $50 to $100 per thousand, and that 
timber is being destroyed very rapidly for market purposes. It is being cut down and 
shipped to this market, and to other cities and towns in California, for the purpose of 
finishing work. It is being destroyed and its timber utilized as lumber. Sometimes a 
whole tree is wasted to get a few shakes out of it, but these are exceptional cases. 

Q. To what extent are the forests destroyed by fire? — A. I do not think there is as 
much fire now as in early days. In those days the Indians used to set the woods on fire 
every fall. I noticed lately, when I was up there last month, there was an immense 
growth of young trees coming up, about 25 or 35 feet high, and as thick as they could 
stand, and probably from 4 to 12 inches in diameter ; and the larger trees are growing 
much thicker. I account for it by the reason of there having been no extensive fires 
lately. 

Q. Do you think the growth of the timber would replace what is taken out for use in 
the industries of the country ? — A. It will in course of time ; but those large trees, I sup- 
pose, are one hundred and fifty or two hundred years old. They are cutting young growth 
upon Grass Valley for firewood, which they use at their quartz mills. I never thought 
that there was such an immense growth, but I account for it by the absence of fires. 

Q. Are these lands valuable for agricultural jmrposes ? — A. Some of them will raise 
elegant fruits, especially the foot-hills, well up, as high as Datch Flat and that range, 
at an elevation of 1,400 to 2,000 feet above the sea. The timber is oak low down, and 
changes to a growth of pine as you go higher, and it is larger. It is the true pine. 

Q. Is that belt of valuable timber valuable for agricultural purposes ; i. e., where the 
heavy pines are ? — A. No, sir; not as a general thing. It is too high an elevation for 
the successful raising of crops. You can raise fruits there, but as to general farming 
operations there is not much in it. There are sheep up there in the summer time, for 
the purpose of grazing on the grass, but it is only for a few months. The chief value 
of this timber land is its timber. I should judge that the timber has been destroyed 
up to 2,000 feet, and along the railroad and other accessible roads. Between the North 
Fork of the American River and the Middle Fork it is all gone. There is a ridge there 
in which there is some sugar-pine, but all the most valuable sugar-pine is gone. 
Around Lake Tahoe it is almost all gone. It has been taken to Virginia City for tha 
mines. 

Q. The lands, then, are valuable for their timber chiefly ? — A. That is all. 

Q. What class of men want that land ? — A. If that land was surveyed and in the 
market, it would produce good summer grazing four months in the year as a general 
thing. As the snow melts the grass springs up, and when you cut this timber away a 
new growth comes up quickly. 

Q. What about the arable lands? What is the best system of disposing of them to 
secure the greatest number of actual settlers thereon ? — A. The great trouble with most 
of the land arises from the absence of water. Away down in the San Joaquin Valley 
wherever they can get water they can produce very good crops, and as a general thing 
they have farmed it very successfully. I do not believe that poor men can pay high 
rates for water for irrigating their lands and make any money. It requires capital to 
bring in the water, and it can only be done by rich men. It would probably be most 
advantageous if the water could be brought to the land by some public system or by 
the general government. Then the land would produce very large crops. 

Q. Have you paid any attention to the question of storage of water for irrigation 
purposes, or to the transfer of Avater rights to tho possession of irrigating canal com- 
panies, &c. ?— A. I do not know of any water in this State but what is taken up, as 
we call it, for irrigating or mining purposes. The tendency is to take out the water 
low down, and so it comes afterward to be an engineering difficulty as to what can be 
taken away from tho land and given to others higher up. The difficulty in that mat- 
ter is this: if you take the water out some man below you will claim his riparian 
rights and privileges, and will require the return of the water back into the stream. 



PUBLIC LANDS. 2-iL 

The custom has been here that the first man who came along should ha\e all the water 
he needed for mining or agricultural purposes, and the rule has been about the same. 
The waters that are taken out of King's River and Tulare Lake for irrigation purposes 
are continued along the plains a long way, and I am told the water is stolen, because 
the price is so high it would not pay for small farmers to buy the water to raise crops. 

Q. What do you think of the pasturage lands ? What disposition would you make 
of them ? — A. I do not know. I don't know of any pasturage lands that are not taken 
up already, and I suppose they have procured titles. I think all the lands I have 
known of are in the hands of private parties now. I do not know how it is south of 
San Joaquin Valley ; there may be such places ; but in surveying the eastern boundary 
of this State I saw no land along from Oregon to the Colorado River that is nat- 
urally fit for grazing. Through the head of Death Valley and those deserts on the 
Mohave there is a little good land ; but ouside of that it is a barren waste. 

Q. Please go on with your statement about the debris. — A. I am the engineer for the 
miners' association, which sent me up to examine into this debris question and to as- 
certain whether the tailings from the mines could be taken care of. 

Q. Tell us to what extent the tailings are destroying the land. — A. When I went up 
these rivers in 1849 they had very large bars or deposits in them at that time. When 
the miners came on they went to work digging the gold along these rivers with their 
picks and shovels, which loosened the surface material ; that was the first debris that 
ran down these rivers, especially the Bear, Yuba, and American. It is only during 
late years that heavy hydraulic mining has been prosecuted to any large extent, say 
the last ten or fifteen years. Practically the mines are now in the region south of the 
Middle Fork of the Yuba, and they do wash down immense deposits into the South 
and Middle Fork of the Yuba. During the high stage of the water a great deal of that 
debris is swept into the river. Most of the bowlders and heavy rocks lie there, but 
the freshets sweep the light materials down into Suisun Bay. 

Q. What was the condition of this river prior to its being destroyed by the debris ? — 
A. Previous to that the rivers had tolerably high banks and there was some good land 
along them; the Bear River had probably the largest body, and that was very fine 
land. I myself had a ranch for fourteen years in that locality. The first overflow of 
this heavy debris came down as early as 1856 or 1857. During the freshets the rivers 
overflowed by reason of the debris in the mines filling up their beds, and the result of 
the overflow was that it injured some of the land. On one side of the river (the north 
side) they put up good levees ; on the south side they failed to put up good levees, and 
the sand and debris ran over them and covered the land 5 or 6 feet deep. 

Q. How long did it take to cover the land 5 or 6 feet deep ?— A. At that time I sup- 
pose three or four winters probably covered it to that depth. It had been coming 
down from the early days of 1849, and it kept working down ; and when the heavy 
freshets came it was washed out with great force and deposited where the river enters 
the plains, and that was the place where the sand and heavy deposits remain, while 
the lighter material continues working down. The purpose for which I went up was 
to examine and see whether this debris can be kept out of the rivers and retained in 
the mountains, and I have no hesitation in saying that it can be taken care of by mak- 
ing brush dams and diverting a large portion of the lighter material on to the red 
land. There are thousands of acres of waste land lying between the Bear River and 
the Feather River, and between the Bear River and the Sacramento, and between the 
Yuba and the Feather Rivers, where this lighter material can be run over on to the 
red lands, which are now entirely useless and unfit for cultivation. The red soil is but 
a few inches above the bed-rock, and by depositing this sediment there these lands 
can be reclaimed. My idea is, further, that there is no objection to leaving the coarser 
material, such as bowlders, cobble-stones, &c, in the river bed, where they will lie 
perfectly still, while, by running off the lighter stuff, we would fill up and cover these 
red lands that are now worthless and form on them with the deposits a soil three or 
four feet in depth. In addition to that, there is plenty of room to run this soil into 
the tules for many years to come. The lighter material makes a very good soil, and, 
in fact, on the Bear River they could never grow potatoes until the land was over- 
flowed with slickings. In addition to that, the heavy material can be put into dumps, 
and during the winter season the freshets will continue down, the river will wash out, 
and, in course of time, this will help to relieve the present fill-up of the river. By putting 
in dams we retain, all the heavy material in the river, and in the summer time can 
draw from the water thus dammed up. 

In regard to the hydraulic mining business, I look at the question in the light that it 
would be very injurious to the country and the State to stop it. On that single ridge 
alone they employ a great many men — that is, the ridge between the Middle and South 
Forks of the Yuba, embracing the North Bloomfield Company. Their pay-roll is $2,000 
per day, and all the people who live on that ridge are living there through the mining 
industry ; and these very farmers who are now complaining of the debris find their 
markets in the mountains, and sell to these same miners every article they raise at a 
hij?h rate of profit. This mining country that contains these gravel deposits is useless 

16 L 



242 PUBLIC LANDS. 

for other purposes, and as near as I can judge it is 40 miles in width, and is probably 
from 18 to 20 miles in length. In the course of a hundred years there will be more land, 
worked, but a large portion of this mining ground will never be worked by hydraulic 
appliances. In that portion where the bank is too deep — from 300 to 400 feet — it is 
generally drifted. I know of no other water than that which these ditches are now 
carrying that can be had, so that hydraulic wo dng will be gradual and will not be 
overdone in that particular divide for the want of water. The people below now de- 
rive a great deal of advantage from this fact : that the mines store a very large amount 
of water in the winter time when the heavy freshets come down. The water they stop 
and store in the reservoirs amounts to over 9,000,000,000 cubic feet, that would other- 
wise come down the rivers. That water is furnished as required during the summer 
time. 

Q. You are familiar with the ground occupied by the farmers; to what extent has it 
been injured ? — A. If there had never been any hydraulic mining, the lands would still 
have been injured, and they were injured before the hydraulic mining commenced. 
The fact is this: as this material comes down, the bed of the river is being raised, and 
as a matter of course you must raise your levels correspondingly. 

Q. If you find that the stream has cut its own channel, to what extent is the debris 
carried into the whole valley, and to what extent is it carried over the adjacent hills? — 
A. It is a very difficult question for me to answer, for the reason that there must be 
more or less from the plowed land or from natural causes. I know of some tracts that 
have been benefited by the debris, while others have been injured. Swamp lands have 
been benefited. 

Q. Is it possible to divert that debris into the lands where it would be a benefit in- 
stead of an evil ? — A. I think it can be. The red lands are perfectly useless, but by 
covering them with this sediment they will become valuable agricultural lands. 

Q. Are there any swamp lands that might be filled with it? — A. Yes, sir; on the 
Sacramento Eiver, near Marysville, there is fall enough to run these slickings off and 
fill up the swamp land ; there is no doubt of that. The engineering problem is a very 
simple one. In turning it over in my mind, I was thinking there would be some ob- 
jection to this from the people who are now complaining ; that if you take the debris 
out into the river they would not ask you to turn it back again. I do not know that 
we could settle this problem without some legislative action permitting the water to be 
diverted from the river in order to carry this material to the different dumping-grounds. 
I have had a good deal of business with these people, and sometimes when they com- 
plain and you undertake to relieve them, they will complain that you are relieving 
them. I understand there is a proposition to change the present mode of surveys. 

Q. What do you understand by that ?— A. To change it from the present contract 
system into a paid one. My idea about surveys — and I have been in the business about 
twenty-eight years — is a practical one. We have had poor surveys because there has 
not been care enough taken to examine the men who obtain contracts before they go 
into the field. That is one thing. Then, again, the price has been cut down until in 
some places it is entirely inadequate to obtain a first-class man who is capable of doing 
first-class work. I know of sections of country that in early days were surveyed at a 
price of $12 per mile for sectionizing, $14 for townshiping, and $15 for standard lines. 
That was on the plains, and when we got to the little hills that were over 15 feet we 
discontinued the line, for the reason that it was impracticable to go over them. Since 
that time we have been very anxious to hurry on and go to the top of the mountains 
and sectionize the whole Sierra Nevadas ; but when the government officials at Wash- 
ington saw fit to reduce our compensation a good many old surveyors retired from the 
field. Hence you have got a lot of work which I am sorry to see is not in very good 
condition. As to putting a man under pay by the month, I do not approve of that, for 
the reason that while yon may get several industrious men once in a while, the majority 
of them would want to do just as little work as possible. I would recommend that all 
men before receiving contracts should be examined by the surveyor-general as to 
whether they understood surveying and as to what practice they had. Even if a man 
came from West Point I would want him to go into the field with the surveyors six 
months before he was given a contract. I know many times we have had gentlemen 
fill the office of surveyors who were not practical surveyors. I think if the contract 
system is kept up the compensation should be increased in various localities. I think 
that in the mountains, as a general thing, no man can do accurate work under $25 or 
$30 per mile ; and then there are some of those canons that are 2,000 feet deep, and 
some of these surveyors don't know how to make a simple calculation of a triangle, or 
how to get across canons. In places like that they can't be chained and they must bo 
triangulated. That is the most accurate way to do the work ; but the whole State is 
nearly finished, and I think it would be injurious to change the system now. I would 
bo in favor of the government going on and surveying everything that they could sell, 
without waiting for a man to go in and make application and put up a deposit on two 
or three sections of a township, which leads to a great deal of trouble. 

Q. Are jou permitted to use triangulation ? — A. Yes; under the present system we 



i 



SHOWING THE LOCATION OF THE 

Principal Mining Companies 

ON THE 

SITUATED IN 

SIERRA & NEVADA COUNTIES 
GAUFORNOA. 

Com^/ed from ZTnihi Stofrs Si 




House. LxJDoc.X'lrO 






-i — * 



PUBLIC LANDS. 243 

use triangulation whenever it is necessary. An engineer should be allowed to ns6 the 
triangulation system to get around obstacles. We have that right now, but we can't 
get pay for the lines thus run. Frequently men are permitted to receive contracts 
who are not competent to do this. If the pay was sufficient you could get a better 
class of men. In crossing mountains, as an engineer, I used to triangulate and chain, 
too. Under the present law I would do it that way still. 

Q. If you should triangulate across a range of mountains would .you charge for the 
lines and putting in the section corners all the way % — A. They then run back on the 
line and put the section corners wherever it is accessible. Where the country is very bad 
I always chain right on the slope and take an angle and reduce it. Generally, taking an 
angle on the ground and reducing it is very much better than leveling with chain and 
plumbing the pins. * 

Q. Does this law permitting men to do that extend all over the territory ? — A. It 
extends over this. I know whenever we come to inaccessible places we use triangula- 
tion, and they pay us for it. We have always been in the habit of doing that. 



Testimony of Albert W. Archibald, Trinidad, Col. 

Trinidad, Cod., September 6, 1879. 

Albert W. Archibald made the following statement : 

I have been employed since 1868 as United States deputy surveyor in Colorado, and 
am familiar with the area of the State south of Denver and east of the mountains, in- 
cluding the San Luis Valley. 

I have heard the proposition in regard to the pastoral homestead in New Mexico, and 
I think that the proposition as suggested by Mr. Eomero is a good one ; that is, to give 
3,000 acres as a pastoral homestead to actual settlers upon the condition that certain 
improvements be made ; but I think it is not a good policy to require the irrigation ot 
any land on it or planting any trees. It has been suggested that trees ought to be 
planted. I think that the pastoral homestead is something that is wanted only for 
stock, and that it would be a hinderance for any person who takes it for that pur- 
pose to be compelled to plant any trees or make any improvements other than fence 
it. The only use that could be made of timber would be for fuel or protection from 
winds for stock, or as a shelter for houses. That would be the only use that could 
be made of timber, and there is not enough water in considerable portions of this 
land to irrigate timber. Most of the land could only be made available by springs 
that would not run any considerable distance, or by wells that must be dug at great 
expense. Taking the country from six miles east of Trinidad, following the mountains 
down to Canon City, 180 miles, following the meanderings of the mountains, the coun- 
try is underlaid with coal every place at about an altitude of 6,200 feet. There is no 
country above that altitude that has not coal in it. It is of excellent quality and 
will answer for fuel for all time. The croppings of the coal fissures will not fall short 
of 30 feet on thin perpendicular veins. 

In Los Animos County there is 6,000,000 acres of land, of which not over 22,000 acres 
have ever been cultivated, and there is not water enough with the springs and artifi- 
cial reservoirs tha^ could be made at great expense to irrigate over 10,000 acres more. 
That is, it is not possible to irrigate over 32,000 acres of land in this county out of nearly 
six million acres. The length of the county is about 168 miles by an average width of 
42 miles. In Huerfano County I have estimated the cultivated land there to be about 
16,000 acres. Bent County does not exceed 4,000 acres of any irrigable land that has 
been cultivated up to this time. Greenwood County I am not so well acquainted with, 
but it has very little land that can be cultivated. Pueblo County is not cultivated to 
exceed 15,000 or 18,000 acres. Fremont has more than Pueblo, but I cannot state just 
how much. El Paso County has not water to irrigate 10,000 acres of land. Douglas 
County is at a much greater altitude than any other county and has a greater rainfall, 
so that a great deal more land can be cultivated in Douglas County in proportion to 
the permanent water than can be cultivated in any other of the counties I have men- 
tioned. The water runs off very rapidly, but the soil is light and gravelly and retains 
the water. The particular points that I have referred to in regard to the improve- 
ment of pasturage homesteads I think should be taken into consideration in any legis- 
lation on that subject. 

My conclusion is that this is a non-agricultural country, and my judgment would be 
that Colorado and New Mexico are pastoral and not agricultural countries. The best 
agricultural land we have is in the mountains, or rather at the foot of the mountains, 
between the elevation of 5,500 and 9,000 feet. The grasses at the foot of the mount- 
ains are invariably better than they are further out on the prairie on account of the 
springs and great amount of rainfall. 

I think these pasturage lands ought to be sold by the government at a nominal 



244 PUBLIC LANDS. 

price, that is, at such a price as would iusure their immediate sale and bring a reve- 
nue to the counties from them in the shape of taxation. I think the laws ought to be 
so arranged as to protect the actual settlers on the courses of streams or in the mount- 
ains. There are many places in the mountains where land can be cultivated without 
running water, for instance, on the slope of the mountains south of us. On the Ra- 
ton Mountains there are many places where large amounts of oranges are raised with- 
out irrigation. I would classify these lands and I would say that all lands above an 
elevation of 6,500 in Colorado should be treated as agricultural or timber land, and 
that should be reserved for the actual settlers at 160 acres each. I think the pre-emp- 
tion and homestead law is good in that respect. Perhaps San Luis Valley should be 
an exception. It is a broad valley without timber, has good grass and very good pas- 
turage land, but no better than the average pasturage land down here. The grasses 
that grow below an altitude of 7,000 feet ripen perfectly, and are much better winter 
feed than any grass that grows above that altitude, and when you get as high as 
9,000 feet the grass is only good for summer pasturage; that is, it will only fatten 
cattle in the summer-time ; the growth of grass is heavy and is good summer feed. 

I think that a system of tri angulation surveys by which permanent monuments 
would be established, so that all subdivision surveys should be connected with them, 
would be a check to some of the irregularities that are now found in the present sys- 
tem of surveys. I think there can be some sort of permanent monument fixed at the 
intersection of each four townships. There are very few wooden monuments in the 
country that have been placed more than three years ago that can be found now. 
Stone or metal monuments are the only permanent things. 

I am in favor of the present rectangular system, and am inclined to believe that the 
location of mineral claims in regular tracts would, be an improvement on the present 
method. I think it would be a convenience to miners to be able to make their appli- 
cation for title direct through the local land office, and abolish these county recorders, 
and put it in the hands of the district land officers or their deputies. 

The principal objection to allowing the pasturage homestead to extend over the 
mountains is because there are large tracts in the mountains tbat ought not to be 
allowed to fall into the hands of monopolists. If the pasturage homesteads were ex- 
tended into the mountains there would be a great temptation to procure timber land 
as pastoral land, and the consequence would be that large tracts of valuable timber 
land, would be purchased by speculators for speculative purposes and the timber would 
be of no value to tihe settlers. 

I think that each deputy surveyor ought to use such a simple instrument as the 
aneroid barometer in his work, and I think it would be an excellent plan to have a 
geologist for purposes of classification. 

There is one case in regard to the classification of mineral land where I think the 
settler is greatly wronged, and that is in the careless classification of mineral land 
whereby the settler is subjected to the expense (at this place it is $25 or ,$30) to prove 
the non-mineral character of land that is not actually worth that for any purpose. 
This might have been avoided by a proper classification by some competent person in 
the first place. The coal veins of Las Animas, Huerfano, and Fremont Counties are 
as clearly defined and as easily traced as the meanderings of the Arkansas River, yet 
on the assumption that the coal land extended over those areas to the east of it, the 
General Land Office has made an order withdrawing some twenty-five or thirty town- 
ships from entry as agricultural land till the non-mineral character of the land is 
proved. The consequence is that from $25 to $30 must be expended by each settler 
before he can file his declaratory statement and make his homestead entry. It is a 
great burden on the settler. 

I would like to state that the pasturage lands of Mr. Romero are at a less elevation 
by 3,000 feet than ours, and the pasturage lands are better. Spring opens about three 
months earlier than than it does 90 miles west of that at Los Vegas, and those three 
months are good grass montbs. 



Testimony of H. N. Anns, Trinidad, Col. 

Trinidad, Col., September 6, 1879. 

H. N. Arms mado the following statement : 

I am a sheep-raiser in Colfax County, New Mexico, where I have lived for seven years. 
I own about 9,000 sheep, occupying about 8$ miles. I have 600 acres running along the 
Reta del Waalno Creole, which controls the water. I do not think Messrs. Wight, 
Beattie, or Jones put tho amount of laud necessary to sustain a sheep too high. Mr. 
Romero is a very intelligent gentleman, but he has peculiar ideas about miles. They 
are certainly not my ideas. I think the pasturage homestead a good thing if you 
oiake it large enough. 1 think 20,000 acres of pasturage laud would equal 160 acres 



PUBLIC LANDS. 245 

of good agricultural laud. I think the government ought to sell this land, protecting 
actual settlers. I think 10 cents would be a fair price for pasturage land per acre. 
My county is very well sTockecT. _ I run 5,000 of my sheep 100 miles below me to get 
grass. I have got water there. I have been very pleasantly situated myself, and my 
experience has been that we get along very nicely with the sheep and cattle together. 

The average price of Mexican sheep is about $1.50 apiece. My sheep are improved — 
improved first with cotswold, and now I am improving by degrees with merino, and 
the result is a very good grade of fleece weighing nearly five pounds to the sheep. If 
we were allowed to own our land it would tend to greatly improve the quality of our 
stock, both cattle and sheep. The people have an unsettled feeling and I think the 
peace and prosperity of the country would be greatly increased if these land questions 
were settled. 

It takes from 3 to 5 acres to support one sheep. Three acres wo^ild be the minimum, 
and 5 acres would not be too high an average. The profit on 4,000 sheep is about $2,000 
per year — that is, for the wool — and the increase would be about $1,000 more. Wool 
for the last three or four years has beep very low. There are expenses attending shear- 
ing, lambing, and herding a band of 4)000 sheep, and the labor for a ranch, compared 
with that which a man has with farming land, is not under, I think, 20,000 acres of 
arid land, is equivalent to about 160 acres of agricultural land. There is also a large 
additional expense for living here. The farmers in the States feed themselves, whereas 
here a man does not raise anything ; he must go off and buy it. There are many ex- 
penses here that do not exist in agricultural districts. The expenses of many men 
during the lambing time are very great. They have to have one man to every 100 
sheep. Our ranges are very often 30 or 40 miles from a post-office and we are deprived 
almost wholly of social and school privileges. 



Testimony of diaries C. Baldwin, United States deputy mineral surveyor, Leadville, Colo. 

In the matter of "variation" connected with the United States mineral surveys, pro- 
ducing confusion in lines and boundaries and resulting in litigation, I note a case in 
point. I have noticed in the last fifteen months, in the surveys of mineral claims in 
this district, great inaccuracies, viz, one case of many similar ones: two deputy sur- 
veyors, in running the lines of two claims, parallel, made a difference of variation of 
some 40 minutes, resulting in a strip of land between the two claims of, say, 18 feet 
in width at one end and 1,800 feet in length, giving a capital opportunity for law-suits 
and depriving both of the adjoining claimants of a portion of their claims; and some- 
times they lap over, and sometimes they leave this vacant — the strip. This results 
from the employment of incompetent men as deputy surveyors, men who do not know 
how to use the solar transit. The district laml office at Leadville has official record of 
several cases as above set out. Remedy : that in all mining districts a base or meridian 
line at least one mile in length should be established from astronomical observation, 
and that all official surveys of mineral claims should be run from this point, using it for 
obtaining the true course of all side lines of mineral claims, and when mineral-claim 
surveys become extended over a large scope of country, to make secondary base lines 
from the first. I want to do away with connecting mineral claims with township or 
sectional corners, because our mineral-claim surveys are accurately made, and the rect- 
angular system, as now made, is inaccurate. Under the present system of rectangular 
survey, in a few years all corner stakes and marks soon disappear. 



Testimony of B. C. Beattie, Trinidad, Colo. 

Trinidad, Colo., September 6, 1879. 

R. C. Beattie, sheep-raiser, made the following statement : 

I have owned sheep in California and New Mexico. Mr. Goodwin and myself have 
between 1,100 and 1,200 head of sheep. I think, judging from the ranges we have 
occupied, that it would take fully 3 acres to the sheep. I am not a cattle man, but I 
think it would take to one beef — that is, one beef would consume as much as 8 or 10 
sheep, and I think it would require in a range all of 3 acres to sustain a sheep. I do 
not believe that the grass is injured under sheej) pasturage. J think there is a preju- 
dice between cattle and sheep men, and I think it would be very much better if we 
were permitted to buy our ranges. I think we could raise more and a better quality 
of sheep if we had our ranges to ourselves and fenced in ; it would increase the value 
of the land and herds. We would then breed differently. Instead of raising sheep 
■with a clipping of If to 2£ pounds to the sheep, if we owned the land and controlled 



246 FUBLIC LANDS. 

it we would grow a sheep that would clip from 3£ to 5£ pounds. The disposition this 
year is to buy the improved merinos. There is a great demand for a better class of 
rams. I have had for sale here for three or four years a real breed of merino sheep, 
but it has been a struggle to introduce them. The objection has usually been this : 
that merinos do not herd well with the native sheep, and that all eastern sheep have 
to undergo a process of acclimation that very frequently causes loss. In addition to 
this the merino sheep have not been accustomed to roaming or traveling for their food, 
and in this high altitude it seems that in acclimating them they get a fever that is 
very fatal to a great many. I speak in reference to imported stock. 

I value the average herd here at $1.50 per head. I think, under a fencing system 
and owning their own land, that the value of the herd could be more than doubled. 
There is a demand now and sale for (principalis'- this season) an improved heavy sheared, 
well-graded merino ewe. Parties are now unwilling to purchase the poor Mexican 
ewe. From the fact that you do not own your lands it makes an uncertainty in the 
business that is very hurtful to it. It is the bane of the business, and has greatly 
tended to retard the improvement of herds. Parties have no titles to their ranges, but 
hold them by common consent, and they are often in dispute. We find that it takes a 
large range, that we have to control a large amount of territory, to run from 10,000 
to 20,000 sheep. I have a range perhaps 4 miles one way by 7 miles another for 10,000 
• or 11,000 sheep. I would buy this land, if I couJd at the nominal price of 10 cents an 
acre. I think the pasturage homestead rule would be a good thing for the settlers 
and the government, if the stockmen were protected, by allowing them to purchase 
land to the extent of the stock he has on hand at the time of entry. I thiDk it would 
be a fatal blow to the stock-growing interest of the country to restrict a man from 
getting hold of and controlling a sufficient quantity of land to grow and sustain the 
flock he has at the time of the passage of the act. I do not think New Mexico can 
ever be an agricultural country, and I have been over a very large portion of it. 

I think Mr. Romero's statement concerning irrigation is correct ; I think New Mexico 
is not yet overstocked, but will sustain more and better stock. The greatest difficulty is 
the running over each other's ranges and thereby causing ill-feeling. If these questions 
are not settled they will lead to serious difficulties and trouble. I am satisfied of one 
thing : that the homestead law that applies to the agricultural land of the public do- 
main is wholly inapplicable here ; I think the other one would be better. 

This difficulty is frequently arising on our ranges : a man gets title to 160 acres of 
land where there is water for three months in the year, and this temporary water will 
enable them to ruin your range. We cannot claim that they are legally trespassing 
upon us, but they are in reality violating rules that we observe among one another — a 
sort of conventional rule among ourselves respecting each other's ranges. Owning 
this temporary water they can come there with their stock and eat off the grass. I 
think that parties engaged in raising stock should have the privilege of getting hold 
of large tracts, not with the purpose of monopolizing the land, but for the purpose of 
getting title to it that they may protect their herds" and have as much pasturage for 
them as they have now, when we have a tacit understanding that these ranges belong 
to us. 

I think the pasturage homestead in New Mexico ought to comprise 5.000 or 10,000 
acres, and the government ought to give that much to each settler. I do not think it 
would be a practicable financial proposition to fence this land ; we would have to de- 
pend largely upon herding. I think there is a great deal of land in New Mexico that 
would hardly pay for fencing. This is one reason why, in the future, this land must of 
necessity be entered in large quantities. I see no reason why the law should not pro- 
vide that herding would answer as well as fencing, because fencing will many times 
be impracticable. 

I wish to explain a former statement I made concerning my range and the number of 
sheep there. My range comprises about 28 square miles, or 16,000 or 18,000 acres, but 
all our 11,000 sheep are not pastured there ; not more than half of them are kept on 
this range*; I do not think the range would support that many sheep ; the remainder 
of them" are kept 15 or 20 miles from there. This, you see, would support my state- 
ment that each sheep required about three acres of pasturage. 






Suggestions to the Public Land Commission by Hon. James B, Belford, M. C, Central City, 

Colo. 

Central City, Colo., August 18, 1879. 

DEAR Sir: I am in receipt of the letter issued by the Public Laud Commission, of 

which you are a member and secretary, and in which you invite me to communicate 

to you any suggestions which I might desire to submit touching the proper method of 

disposing of the public lands. I am aware, and have been for a long time, of the im- 



PUBLIC LANDS. 247 

portance and necessity of a radical change in the system governing both the location 
of claims upon the public lands and also in the manner of their disposition and sale. 
For a number of years the Land Department at Washington has admitted that the 
climatic and physical conditions attending that large body of land lying between the 
one hundredth meridian on the east and the Cascade Eange and Sierra Nevada Mount- 
ains on the west, and from the Mexican line on the south to the international boundary 
on the north, carried it out of the operations of the pre-emption and homestead laws. 
The attention of Congress, in at least three instances, has been called to the necessity 
of adopting a new system. Both the present Commissioner of the General Land Office 
and his predecessor have urged upon Congress the necessity of authorizing the imme- 
diate offer for sale of that body of surveyed land lying west of the one hundredth me- 
ridian, and the part remaining unsold to be subject to private entry at $1.25 per acre. 
Of course this would carry us one step in advance of the present position, but in my 
judgment it is of questionable expediency, for the reasons which I shall now proceed to 
enumerate. 

If these lands were agricultural or arable in character in the sense that the land 
lying between the eighty-first to the ninety-fifth degree of west longitude is, or if it 
could be made so by irrigation, we would still have to encounter the vital question 
which overshadows the whole subject, namely, from whence is the water supply to be 
derived ? Irrigation is indispensable to production, except, possibly, in the immediate 
vicinity of some of the streams. I take it that the present water supply is not commen- 
surate with the body of land to be watered, and all such as cannot be watered must be 
taken out of the list of arable and placed in that of pastoral land. First, then, as to the 
disposition of the pastoral lands. Their value will depend upon the facilities for obtain- 
ing a needed supply of water for stock, and also on the climatic conditions : and yet 
the policy suggested contemplates that all this land, without regard to its proximity 
to or its remoteness from water, shall be rated at the same price, namely, §1.25 per acre. 
It will be perceived that land which lies five or ten miles distant from a stream or 
spring of water sufficient in volume for a herd of stock is to be sold or entered at the 
same price demanded for that on the border of the stream or spring. Such a system 
lacks both the elements of justice and equity. The same is true of land capable of 
irrigation, because its value will also largely depend on the expenditures required to 
subject it to water. 

But there is another objection which I have heard urged by men engaged in pas- 
toral pursuits, which, if acted up6n by them, will defeat the policy of sale. At pres- 
ent their cattle roam over these sterile plains without cost to the owners for use or 
occupation. If they become vested with the title to the land it immediately becomes 
amenable to local taxation, and this they say will be a grave and serious burden to 
one owning a large herd and utilizing a large tract of country. So long as they can 
use the land without cost and free from local taxation they certainly will refrain from 
purchasing it. It occurs to me that a uniform rate per acre is neither wise nor just. 
Land on the banks of a stream is worth more than land away from it. Let the gov- 
ernment fix a maximum rate, say $1.25 per acre, and then scale down the price as the 
land is near or remote from the facilities that can make it available for use or occupa- 
tion. 

There is another phase of this question which reflection has led me to regard with 
favor. I mean the leasing of the public domain in tracts ranging from a thousand to 
ten thousand acres. Men who refuse to buy because of the burdens of local taxation 
would be willing to pay a nominal rental, say five cents per acre. They would be will- 
ing to do this for a number of reasons, among which I enumerate the following : First, 
it would enable each man to protect his own range against the cattle of his neighbor ; 
second, it would terminate the hostilities which exist between the men who own cat- 
tle and those who own sheep, for the owners of each, having an interest in the soil, 
could legally protect it from the invasions of the other ; third, having an interest in 
the soil, the proprietor would feel justified in entering upon improvements, if any could 
be made. 

This leasehold system, as you are aware, is not new. It has obtained in reference 
to the Crown lands in New South Wales since 1861, and in the Queensland colony 
since 1868. It may be said that such a system would work a complete innovation in 
the land policy of the United States. I concede this, and then answer that it is not 
the first innovation. Originally the government regarded the xmblic lands as a fund 
out of which it derived its revenues and as a means by which it met its necessary ex- 
penses. This policy was abandoned and one looking to the securement of settlements 
on the public lands' adopted. This change was evidenced by the inauguration of the 
pre-emption and homestead system. The Land Dejjartment at Washington now ad- 
mits that the pre-emption and homestead system is no longer applicable to that large 
body of land lying west of the one-hundredth meridian. A change is admitted to be 
necessary. We are now forced to take a new departure, and it occurs to me that the 
leasehold plan is worthy of grave consideration. Rating the entire body of land at 
$1.25 per acre and fixing the rental at 5 cents per acre would give the government an 



248 PUBLIC LANDS. • 

interest of 4 per cent, on every acre rented. This amount men desiring to occupy the 
land with their herds would be willing to pay for the security they would derive 
from their leasehold interest in the soil. Under this plan the government would 
derive a revenue, whereas at present it receives nothing. 

I now desire to call your attention to another matter which I deem worthy of pub- 
lic consideration. In a report made by the Commissioner of the General Land Office 
to the Secretary of the Interior, November 1, 1876, the following language is used : 
"Under a system which would justify large expenditures and insure the utilization 
for purposes of irrigation of the whole volume of water reaching the valleys from the 
mountain streams, but a mere fraction of the whole great area could be made fit for 
tillage." It is admitted herein by the officers of the government charged with the cus- 
tody and disposition of the property in question that there is no present supply of 
water adequate for the reclamation of these arid lands. Are they to remain forever a 
waste? Will the government undertake their reclamation ? If so, what plan shall 
be adopted? I have heard a number suggested, and among them the donation of the 
alternate sections of land to the individual or corporation that would subject them to 
irrigation. It occurs to me that the government might wisely appropriate at least 
half a million of dollars to be used in sinking artesian wells at various points in search 
of the needed water supply. If it can be demonstrated that water can be obtained in 
sufficient quantities by sinking these wells, you at once add immensely to the value 
of the land and establish the possibility of ultimate settlement upon them. Here, 
then, are two prospective advantages immeasurable for good in their results and of 
incalculable effect on the destiny of this vast region of country. As the land is the 
property of the nation, its reclamation should be a matter of national concern. Could 
this land be made available for human habitation by the obtaining of water through 
the agencies I have named, no man could accurately predict the mighty and beneficent 
results that would be reached. 

The enterprise is in every way worthy of the favor of the government, and is the 
only method offered by the present for the making available for human habitation 
this great domain. The State cannot be expected to execute this undertaking for it 
is not the proprietor of the soil. If, however, Congress should treat these arid lands 
as it treated the swamp and overflowed lands in 1850, donate them to the States in 
which they are found, we could then look to our local authorities to take some action 
of the nature above suggested. I am not hopeful of such action on the part of Con- 
gress. And therefore press the subject on your attention. In conclusion my sugges- 
tions are : 1st. That if the land is to be sold it should be in tracts of from 160 to 
10,000 acres. 2d. That the maximum should fixed at $1.25 and the minimum at 10 
cents per acre, dependent on the location of the land with reference to water and the 
possibility of its irrigation by ditches. If leased, then it should be leased in tracts 
of from 1,000 to 20,000 acres at a nominal rental, and for at least a ten years' term. 

In either event whether sold or leased the government should appropriate half a 
million of dollars, if so much be necessary, to be expended under the direction of the 
Secretary of the Interior in sinking artesian wells at various points to the end that 
it may be demonstrated whether or not water can be obtained. 

I have reserved the other matters submitted in your letter for a future time. 
Very respectfully, yours, 

JAMES B. BELFORD. 

Captain C. E. Dutton, 

Secretary Public Land Commission. 



Testimony of Dr. M. Beshoar, Trinidad, Los Animas, Colo. 

Trinidad, Los Animas County, Colo., August 30, 1879. 

Dr. M. Beshoar made the following statement : 

The stock owners about here own large herds that sustain a number of persons, 
and I think it would be well to sell the land in large bodies. It is supposed under the 
homestead law that 160 acres of land will be sufficient for a farmer's family, but here 
the proprietor of one herd often supports twenty families. I believe really that the 
best policy would be to sell the land at a reduced fixed price without limit. My rea- 
sons are: first, that the hind is not as valuable as agricultural land, and therefore 
will not be taken up as agricultural land ; second, that stockmen will not, at any 
price, be likely to buy more than they need at present or that they will probably need 
in the near future; and third, that if a stockman found that he bad more land than 
he would probably require, rather than pay taxes upon a large body of land he would 
sell if to other stockmen. The water rights are not all taken up in this county, and 
I do not see how the selling of the land in large bodies could affect the small owners 
unfavorably. 



PUBLIC LANDS. 249 

The average amount of grass necessary to fatten one beef for market would be 25 
acres, and I do not think this amount varies much from year to year. I am sure that 
an amount not exceeding one-fourth the value of cattle owned in the county is re- 
turned for taxes, and of the cattle grazing in the county not one-half are given in. 
This is the same way with sheep, except there are not so many in the county not listed 
for taxation. 

I think it would be of vast advantage to the stockmen to have the land fenced, as 
it would give them an opportunity to improve their stock and protect their grass ; 
and the sale of the land, in large tracts would be of advantage, on the ground of 
making more taxable property. 

There are comparatively few agriculturists in this section of the country, and I do 
not think any person makes a living upon agriculture exclusively. Irrigation is car- 
ried on to some extent, and it does not injure the land, but improves it from year to 
year. All the land that can be irrigated in the driest season of the year is now under 
irrigation, and unless the water was husbanded in reservoirs for the purpose the 
area could not be extended. 

There is trouble here between the sheep and cattle men. A great deal of animosity 
is developed, and frequently bloodshed and violence. The sheep injure the grass if 
kept on it long, and cattle do not graze well upon ground over which sheep have 
recently been grazed. When they tried to raise sheep and cattle on the same range 
here it failed. Most of the land in this region is arid, except the narrow valleys aloug 
the streams, which is irrigable agricultural land. 

I think that 5 sheep to 25 acres or 5 sheep to 1 beef would be about a right propor- 
tion ; bdt I do not think that allowance would improve with sheep on it, while with 
cattle it might improve some. Sheep are more destructive than cattle. 

Owing to the uncertainty of tenure there is trouble threatened all the time, and I 
think this land question ought to be settled as soon as possible. Stock raising now is 
a sort of battle. For instance, the sheep men claim that it is public domain, the land 
of the government, and that they have the same right upon any portion of it as the 
cattle men have. A cattle man will select a range, and the sheep men will come along 
and say that they have a right to range their sheep there as it is public land, and very 
frequently they will take their herds in upon the ground of the cattle man. The 
result is, of course, violence, and murders are not infrequent, while much stock has 
been destroyed by these jealousies. The cattle men drive the sheep up together and 
then ride over them, killing many of them, and there results a sort of " shot-gun pol- 
icy," which makes bad blood and disorder. Then many of the sheep have their throats 
cut. On one occasion as many as five or six hundred were thus killed. This is suf- 
ficient to illustrate the bad feeling between the two classes. 

I tried farming on my place in this county, and I found I could bring things from 
Kansas, all expenses paid, for less than one-half of what I could raise them for. I 
kept account of my expenses and found this to be a fact. 



Testimony of J. L. Brush, cattle-raiser, G-reeley, Colo. 

J. L. Brush; resides at Greeley, Colo. ; is the owner of a herd of cattle numbering 
nearly 4,000. He is of the opinion that it is unadvisible for the government to open 
the arid lands of Colorado to private entry in large tracts, or even in tracts of mod- 
erate size capable of supporting small herds of cattle. If this were done the land 
would be purchased by numerous persons, whose only object in so doing would be to 
sell it to large capitalists and to owners of great herds if the price were low enough. 
Such persons would be the herdsmen employed by the great cattle owners, or other 
men hired by them to obtain titles to such tracts of land. If the price set by the 
government were too high it-would not be sold, and the law would be practically in- 
operative. If the price were low enough to tempt purchasers those tracts which 
might be purchased by individuals in small holdings would quickly concentrate in the 
hands of large owners. 

As a general rule the large cattle owners would probably like to own the lands in 
very large tracts on which they would pasture their cattle. The small cattle owners 
cannot at present afford to own them. Whenever the government is ready to part 
title to its arid pastoral lands the large cattle owners will be the first who would seek 
to acquire it. And if they want it they will get it as soon as the government is ready 
to dispose of it. The effort to prevent them from monopolizing large tracts would be 
useless. Experience has already shown that the present homestead and pre-emption 
acts and the rules of the land office are no obstacle to them in acquiring large tracts 
of land along the courses of rivers. The ordinary price of $1.25 per acre is not too 
much for these lands, because by controlling the water-front they control also the 
land adjoining for an indefinite distance from the water. They obtain these lands by 
causing their herdsmen to file upon them and take out patents, and they pay all the 






250 PUBLIC LANDS. 

expenses and obtain from their herdsmen deeds of the laud. Much false swearing of 
course is resorted to, but the patents are obtained nevertheless. Small owners could 
not afford to buy land in a similar way, and hence the larger owner is the one who is 
most interested in acquiring the land. Opening the pasturage lands to private entry, 
therefore, would have the effect of concentrating them in the hands of a very few 
cattle kings. A limitation of the quantity to be sold to any one purchaser would 
amount to nothing, because the man who wanted to acquire an immense tract would 
simply get a sufficiently large number of men to enter the land in their own names 
and sell out to him. Perjury would be no obstacle, any more than it has already been 
to the acquisition of very long lines of river-front. 

I think the bringing of these lands into market at a low price would be disastrous 
to the cattle interests of Colorado, because it would tend to exterminate the smaller 
cattle owners. So long as the land is public land every man has an equal right to 
pasture his cattle on it, and 'the stronger cannot easily drive off the weaker, or at 
least they have not often attempted to do it. According to present customs and almost 
universal comity prevailing throughout the State, the larger owners as a rule do not 
prevent the smaller ones from watering their cattle at their river-fronts and water- 
holes, and in the general "round-up" of cattle every man takes care to bring in every 
other man's cattle. The interests of the large and small owner are so intimately inter- 
woven that the neglect of these customs and comities would be detrimental to both. 
It might perhaps be more detrimental to the smaller than to the larger owner, but it 
would be sufficiently so to the larger to keep him under a constant inducement to 
observe them. If, on the other hand, large cattle owners are to become also monopo- 
lists of large tracts of land, all such community of interest; ceases. The only interest 
of the monopolist would then be to keep other people's cattle off his land, and his 
right to do so would then be perfect. The result would be that cattle-raising would 
be almost if not quite impossible on a small scale. 

Under existing laws I am of the opinion that there is no greater tendency for the 
cattle interest to concentrate into the hands of a few cattle kings than there is for any 
manufacturing business to concentrate into the hands of a few individuals. Undoubt- 
edly the owner of a large herd can raise cattle at a smaller cost per head than the 
owner of a small herd. So can a large manufacturer produce, in the long run, some- 
what more cheaply the same kind of products than the small manufacturer can. That 
is a consequence of the natural laws which govern industry, and it is beyond the reach 
of legislation. 

Instances have occurred where, under the present system, small owners have been 
crowded out by larger ones. Some large owners are mean and avaricious enough to 
use the great resources which they undoubtedly possess to crowd out weaker men. 
They may instruct their herders to leave behind the cattle of their poorer neighbors 
in the general round-up. They may sometimes drive the cattle of the poorer men away 
from their rivers and water-holes, and by keeping them moving run them down in 
flesh, and may resort to many devices and tricks to injure them, and ultimately compel 
them to sell out or emigrate. But I believe such practices are not common, and when 
they do occur are injurious in the long run to* those who resort to them. Although 
some men are driven out of the business and discouraged, there are plenty of others 
to take their places and begin the business as small owners. 

In answer to the inquiry whether the acquisition by cattle men of very large tracts 
of land along the water-fronts of streams has been injurious and oppressive to the 
people of the State, I should say in general that it has not often proved so hitherto. 
The owners of such tracts have not, as a rule, undertaken to avail themselves of their 
ownership of these long tracts to keep the cattle of other men away from water, though 
it is generally conceded that they have the right and power so to do if they choose. 
Possibly they may think it for their interest to do so at some future time ; but when 
they do it will bo" time enough to take action in the matter. I am of the opinion that 
if such a difficulty ever occurs it could be reached about as well by State legislation 
as by national legislation. 

I do not think that the extension of the homestead principle to the occupation of 
pasturage lands would be beneficial. It would be open to objections the same in kind, 
though perhaps less in degree, as those which I have stated would appertain to private 
entry or pre-emption. A person homesteadiug a tract of 1,000 or 2,000 or 3,000 noes 
of arid land might be a herder in the employ of a great cattle king, and fifty or more 
of such herders might homestead as many contiguous tracts, and for a nominal con- 
sideration the cattle king would be cuabled to occupy them as much ami as exclu- 
sively as if they were his own. The homestead privilege would rarely be availed of by 
any man for a bona-jide occupation for the purpose of acquiring a permanent residence, 
but if taken up at all it would bo taken merely for the purpose of holding the laud 
under a temporary possessory title in order to keep other peoplo off from it and to se- 
cure the benefits of such occupation exclusively to the greater cattle owners. If any 
one were to take up such a homestead with bona-jide intentions, and for his own per- 
sonal use, his situation would bean unfortunate one. I repeat here that the whole 



PUBLIC LANDS. 251 

pastoral industry of the State is conducted upon the assumption that the land is pub- 
lic land and open to every man alike, whether rich or poor — whether he owns 5 head 
of cattle, or 500, or 50,000. Every man who pastures there considers it for his own in- 
terest to take care of every other man's cattle, and this common care of each other's 
property is the life and soul of the entire industry. If that understanding were to be 
disregarded the whole pastoral system of the State would go to pieces. Now if a man 
homesteads a tract of two or three thousand acres he must fence it, to keep off other 
herds. His very object in homesteading it would be to keep every other man's cattle 
off from it. He thus puts himself outside of and in antagonism to the general comity 
and mutual help and co-operation, in conformity with which the entire pastoral in- 
dustry of the State is conducted. He could not sustain himself iu such an attitude. 
Nobody would bring in his cattle in the spring, nor would anybody permit his cattle 
to range with theirs. He must open his fences in winter to allow cattle to drift with 
the storms, and the result would be that he would lose them. 

I think the present condition of affairs is better than any of the proposed changes. 
I believe that the poor man has a far better chance to make a start with a few cows 
and gradually acquire a moderate herd, than he could possibly have if the land were 
allowed to pass into private ownership. As soon as the law opens the way the large 
owners will get it all and exterminate the small owners. We should then have the 
same state of the cattle industry as that which now prevails in Texas, where a very 
few men own all the pasturage land and where small owners are unknown. 

I wish to say that so far- as my own interests are concerned there would be no injury 
done to me if the lands were open to entry. I am neither a very large nor a small 
owner. I should at once buy every acre of land along the streams which I could lay 
hands on, unless the price were too high, and should secure the largest tract I could cover. 

The foregoing testimony was fully concurred inbv Bruce P. Johnson, owner of 7,000 
cattle ; O. P. Gale, owner of 1,000 cattle ; H. W. Twombly, owner of 500 cattle ; S. F. 

Whitney, owner of 350 cattle ; Pinneo, owner of 300 cattle ; George H. West, 

owner of 2,000 cattle ; all of Greeley, Colo. 



Testimony of William K. Burchinell, Leadville, Colo. 

Leadville, Colo., August 25, 1879. 

William K. Burchinell, receiver of the land office, made the following statement : 

Question. Mr. Burchinell, you have heard the opinions of your colleague as to the 
proportions of the various classes of land in this district ; is that in accord with your 
views ? — Answer. I think as a rough estimate it is about right. I corroborate his 
statement. 

Q. Do you agree to his statement in regard to the agricultural lands ; meaning thereby 
land capable of raising cereals? — A. I do. 

Q. The timber lands also ? — A. Not altogether. 

Q. Please state any views you may have in regard to timber lands ? — A, Well, the 
land in this district has only been subdivided into two classes, that is mineral and 
non-mineral, and there are very few instances, in fact I cannot recall one within my 
knowledge since I have been in the office, where the whole tract was taken up for the 
purpose of securing the timber. Of course, a ranchman in locating his ranch desires 
to have some timber on it and will take some timber, while the major portion of the 
land will be prairie or plains, or whatever you may choose to call it. There was quite 
a great deal of this land, referred to by Judge Henry, in 1872. It was generally sup- 
posed to have been a fraud perpetrated at the time of those entries, but of which we 
know nothing at all, as that was before our time. We came here, in this office (not in 
Leadville), in 1875. We have no personal knowledge of that at all, but since we have 
been in the office I do not think I have ever known the entry of a timber claim to be 
entered and " proved up." 

Q. What do you know in regard to the destruction of timber ? — A. I know that 
there has been a great deal of useless destruction of timber all over the whole district, 
and it is something that requires vigorous legislation and laws to prevent it, from the 
fact that miners are reckless with timber always. 

Q. Is there any effective restriction upon this destruction in this district ? — A. There 
has never been any to effect anything. 

Q. It is, then, simply destroyed at the will of anybody, without benefiting the gov- 
ernment ?— A. Yes, sir. 

Q. What would be your recommendations in relation to timber lands, if any ? — 
A. I do not know that I have thought a great deal about it, and hence I have not arrived 
at any definite conclusion in regard to it. In Colorado, here at this high altitude, there 



252 PUBLIC LANDS. 

should be some restriction made to preserve the timber, at least prevent the wholesale 
destruction of it, that is, cutting it all down, from the fact that when the timber is 
once destroyed it will take a long time to grow up again. On the lower altitudes the 
trees will grow up in 50 or 60 years, but on the high altitudes it will take a thousand 
years, you might say, for the trees to arrive at the same dimensions, because it is above 
the line of humidity. If there could be any legislation or enforcement of any of the 
present laws to prevent this wholesale destruction I think it would be a very good 
idea. 

Q. Is it not claimed that when timber is cut down it becomes the lawful property of 
the person who cut it down ? — A. That is so. Mill men no w claim that, under a late 
enactment allowing them to cut timber for mining purposes, they are only acting un- 
der the law in cutting off this timber, because it is mineral land, and there is no way 
of disposing of if, and they are entitled to use it so long as they do not take it out of 
the district or transport it. 

Q. That it covers mineral land? — A. Yes, sir. 

Q. In your opinion the present laws are inoperative and cannot prevent this whole- 
sale destruction ? — A. Entirely so. 

Q. Are the register and receiver vested with any power to stop this destruction? — 
A. None whatever now. 

Q. Are there any other officers in this district who are vested with power to do so? — 
A. Under a late enactment there have been sent out from time to time special agents, 
under instructions from the Commissioner, to look after this matter. 

Q. Have they any power to check this destruction ? — A. They have not. They have 
instructions to see the parties who have trespassed, but they have no authority to make 
settlements. 

Q. That trespassing relates only to timber cut for transportation ? — A. Yes, sir; that 
is my understanding of the law. 

Q. You say that your understanding of the present timber laws is that the only tres- 
passing that could be done upon the government is when the timber is cut off for the 
purpose of exportation or public sale ? — A. Yes, sir. 

Q. You agree to the proportionate amount of pastoral land in your district as stated 
by your colleague, Judge Henry ? — A. Yes ; I think he is correct. 

Q. What is your opinion of the applicability of the present land laws to the dispo- 
sition of these lands ? If they are ineffective, state how. — A. Taking them as a whole 
I think in a district such as this, that has been settled for a number of years — upward 
of twenty — and where all of the most available as well as desirable lands have been 
taken up, that it would be to the interest of the government and to the interest of the 
citizens and residents of the district to give them a chance to buy all the land at private 
entry ; that is, have it offered by proclamation of the President. The present pre-emp- 
tion laws would still be operative upon these lands, and when parties desired to take 
larger tracts by paying the price they could do so. 

Q. State your reasons for that. — A. Here the streams have all been located on both 
sides. And there is a great deal of land that lies up back of the streams that might be 
sold if they were allowed to take large bodies of it, say one or two thousand acres. You 
could then afford to go to the expense of going off a couple of miles and bringing in the 
water through a ditcu and irrigate all your land, while with only 160 acres of land you 
could not afford to go off and make a ditch worth three or four thousand dollars. I think 
a man ought to have as much as he wants, that he might irrigate it and make it pro- 
ductive. 

Q. Could a man have a successful stock farm upon 160 acres of land? — A. Not in this 
district. 

Q. What, in your judgment, would be the number of acres required to each head of 
beef in this district ?— A. I think that Judge Henry's estimate is low enough. There are 
a great many things to be taken into consideration. There are years when I believe 8 
acres would do, but when we had a hard, cold winter and dry summer I think it would 
make an ox very hungry ; while if we had plenty of snow and a wet spring, then 8 or 10 
acres might do, but 1 think it would take more than that. 

Q. Taking the average year, what won Id be the average amount of acreage required 
to each head of beef ? — A. I do not think I should set it at less than 12 acres. 

Q. Would not the grass-bearing capacity of the land decrease year by year by pastur- 
ing? — A. It does annually by tramping it out; at least I have heard our stockmen there 
in the park claim that it was gradually decreasing from that cause. 

Q. Should they not have an increase of acreage for each beef? — A. Undoubtedly. 

Q. Would you sell these lands at private entry without limit? — A. Yes, sir. 

Q. What security would you then have against monopoly? — A. I think the previous 
entries would prevent that. 

Q. What chance would small men have to buy anything ?— A. The same chance that 
ho has now. We have some townships now in our district that are subject to private 
«d try, and they are upon good available land ; thero don't seem to be any monopoly there, 
and I don't think there is any particular danger of any one taking up or entering a 



PUBLIC LANDS. 253 

great deal of land in this district. These lands are of more advantage to tlie men that 
own the streams than they possibly can be to any one else. A man cannot afford to 
buy this arid land unless he can get to the stream. I have no fear whatever of a mo- 
nopoly ; I have not the least idea that there would be anything of the kind. 

Q. What, in your judgment, would be a fair price for this land, upon au average ? — 
A. Well, I would set the figures much lower than Judge Henry did.. Our best lands 
along the streams have been disposed of for $1.25 per acre ; the best of the land gen- 
erally lies along the streams, from which they can cut hay that pays as well if not 
better than raising grain ; in fact, men have made more money on a range in a year 
than many of the farmers in Pennsylvania have made in two raising grain. Then 
those lands that lie up back — thousands and thousands of acres of which is not fit for 
anything in the world but stock ranches — they are too high for irrigation, and all 
they have to depend upon is snow and rain ; for these lands I do not think we ought 
to ask more than fifty cents an acre. There, has been more desirable land disposed of 
for less than that. 

Q. Where, do those townships referred to in your previous answer lie? — A. They 
start from the Upper Platte River, running north 18 miles. They are all in Park 
County, and all subject to private entry, but the land cannot be used because there is 
no water. 

Q. How many acres are there in South Park subject to private entry that have not 
been entered ? — A. I should think that there are six townships, perhaps ; there are 
8,000 acres in each township. I should say, then, 500,000 acres not taken in South 
Park, subject to private entry at $1.25 per acre. 

Q. And the fact that the streams have been taken up by settlers prevents the people 
from getting water upon them ? — A. Yes, sir ; that makes them entirely unavailable 
for anything. There are some too high, and there are others upon which the people 
back of them control the water, and hence cannot be irrigated. 

Q. In the humid region they suppose that 160 acres will support an ordinary family 
by the tillage of the soil. Can you tell me how many head of cattle would have to be 
kept upon a farm, the increase of which would entirely support an ordinary family 
here in this pasturage country, supposing you were to allow them to take a homestead 
upon this pasturage land and they depended upon the cattle alone ? How many cattle 
would it take to support an ordinarily economic family ? — A. Well, I think 100 head. 

Q. In your experience as receiver, what is the situation in regard to government 
stakes or corners ? — A. That it is a notorious fact that when any party wants to locate 
a ranch they have to employ a surveyor at considerable expense for a day or two to 
find any corners, and they will come nowheres near where they want to locate. They 
may have to go off miles then, without finding the corners sometimes, and at other 
times they are destroyed or have been moved out of place, or not preserved at all. 
Right here are townships that have been surveyed within one year, and it is almost 
impossible to find the corners now. The stakes are gone or were never there. I have 
never been there myself but I have heard so much complaint. 

Q. So that when a man has purchased a quarter section of public land he has yet got 
to make a survey independent of the government survey ? — A. He has. In fact we 
have always advised it for the sake of accuracy without that a man may go ahead, 
make his improvements, and after having done so he may have some one come along 
and tell him that it is not where he thought it was. It is better to make a little ex- 
pense than make the changes afterwards. 

Q. You heard Judge Henry's statement as to the operation of the mineral laws in 
this district; have you anything to say in relation thereto? — A. I have several ideas 
that I should like to advance. 

Q. Are you practically familiar with mining? — A. I am to a certain extent; that 
is, I have paid a great deal of attention to mining. I have had a great many and been 
in a great many mines in company with men who were experts. 

Q. Are you familiar with mining litigation ? — A. Yes, to a certain extent. 

Q. Can you state what, in your opinion, is applicable to the present mineral lands 
or mines in this district? — A. Well, I have a theory of my own, or at least I have 
always felt that our present mining laws were not calculated for our forms here ; that 
the laws were enacted for fissure veins, while our forms, both on Mount Lincoln and 
Bross and over on this side, were entirely different from what was intended to be cov- 
ered by that law of fissure veins. Our forms here, some of them, are veins, and some 
of them appear to me to be deposits. Our forms on Mount Lincoln I have always 
thought were deposits. 

Q. In what way would you think the laws were defective as to the forms in this dis- 
trict ? — A. Admitting that these forms are veins, they are usually near the horizontal; 
and when a man discovers one of these veins the mining law in this county allows 
300 feet by 1,500 feet, and in Park County the same ; and in Summit County it only 
allows 150 feet by 1,500 feet. I have always had an idea that in this whole district, 
while we have some veins — I think in the Mosquito district over in Summit — we do 
not really come under the fissure-vein law ; they are almost vertical, or departed so 



254 PUBLIC LANDS. 

little from the vertical as not to affect the general claims. My idea would be, that as 
the veins here are so nearly horizontal to make the side lines just as arbitrary as the 
end lines, increasing the quantity of the mining claims. 

Q. How big would you make them? — A. I think the United States law makes 
them large enough — 20 $$, acres. 

Q. That is a square location, is it ? — A. Yes, sir. 

Q. That is, you would make the surface and. lower boundaries coincident? — A. Yes. 

Q. Would you apply the same rule to the regular fissure veins? — A. I do not know 
any objection to it nor do I see any advantage. I do not know that the width would 
be any advantage, from the fact that these fissure veins seem to be almost vertical, and 
a surface grant is of no use. I speak of those that I have been in and know the dip 
of them, that is what I am judging from now. 

Q. Should the extreme width of any true mineral vein have any weight in deter- 
mining the width of the claim ? — A. No, not if you start out upon this basis of 600 
feet by 1,500 feet. 

Q. For what reason would you assign these limits ? — A. Just because it seems to me 
to be plenty, and then it is the present United States law. 

Q. Don't you think that if you were a prospector who wished to locate under that 
law you would rather turn your claim around and have 600 feet on the ends and 1,500 
feet on the dip ? — A. That is very often done here. 

Q. Is it lawfully done ? — A. Where it is done, then the side lines are supposed to be 
the end lines. 

Q. Is that supposed to be in accordance with the intention of the law ? — A. I think 
it is generally. It just changes your location. 

Q. Is it, then, held here that the United States law, in using the words end and 
side, uses them in such a way that they can be reversed at the pleasure of the loca- 
tor ? — A. No, sir ; but I do not really know where the decision eomes from, whether 
it is from the courts or from the Commissioner, where one has the misfortune to locate 
in that shape. I am not posted about it, but I think it came from some quarter. 

Q. What opportunity is there under the present law to put several claims upon each 
other? Is there anything to hinder a man from locating a claim over the top of 
another one ? — A. No, pot under the jjresent law. 

Q. Is there anything to prevent a hundred? — A. No, sir, only the shot-guns. 

Q. Is there anything in the present law which requires a man, by affidavits or other- 
wise, to prove that there is mineral upon the claim which he is seeking to enter under 
the mineral law, either placer or lode ? — A. No ; the section under which these loca- 
tions are made takes it for granted that the discovery is made. There is nothing 
requiring or compelling him to do so. That is something that should be changed, 
something tlv.it should be required. There is another point. When deep mines are 
required, after discovery there should be some time established for a mine's develop- 
ment ; he should go on with his shaft and exercise some diligence ; he should not be 
away one or two years, and then come back and claim that shaft. I think there 
should be something established in regard to that by enactment. 

Q. Is it the accepted belief that "jumpers," with the purpose of fraud, locate claims 
over and in the neighborhood of previous locations ? — A. It is a fact beyond a doubt. 

Q. Through this "jumping" is not a large expense entailed upon the original loca- 
tors? — A. Always. 

Q. How ? — A. Well, they start first, they commence sinking on the claim, and you have 
got to get rid of them either by an injunction, or by stopping them some way through the 
courts ; that entails an expense ; then it has a very material effect upon the property. 
A man has a good claim, another man comes in and claims part of his lode ; of course 
that affects his title and affects the value of the property. 

Q. Don't they keep standing armies ? — A. Standing armies are required to guard the 
property, and that of course is a great expense. 

Q. What is the loss to the real owner through deprivation of the use of his prop- 
erty? — A. That is an additional loss. For instance, where there has been an injunc- 
tion granted to parties who afterward of course were proved to be "jumpers." 

Q. How long do they let them stay ? — A. That depends upon the length of time be- 
fore the convening of the court. If it occurs prior to the ending of the court of course it 
does not work near as much hardship as if it occurs between the sessions of the court. 

Q. That injunction will practically stop the development of that mine until it is 
demonstrated that the "jumper's " claim and mine are the same thing? — A. Yes, sir. 

Q. Is not the entry of a- lode predicated upon the idea of tho apex of the lode being 
embraced within the claim ? — A. Certainly. 

Q. Can you tell me what the apex of the lode is ?— A. Here it is the highest point 
of the lode. We have such a heavy wash that the apex in some districts is never out 
of the surface. It is the point at which the lode comes nearest to the surface. 

Q. It is the highest point of outcrop ? — A. We have no outcrop here scarcely. 

Q. Then you have no apex ?— A. It is a point that has not been decided yet. 

Q. Suppose a man locates a mineral claim over what seems to him to be the apex, 



PUBLIC LANDS. 255 

has it recorded, erects all his machinery, and commences to develop his mine. Another 
man comes along to another point a little higher than his ; is it not possible for 
him to make a location and sweep the whole thing ? — A. I do not know but what under 
the present land law it would be possible, but I take the ground that the first locator 
was the discoverer of the vein. 

Q. But if he fails to discover an apex, does that help him any ? — A. That is a ques- 
tion I am unable to decide. I claim that he has a right to go ahead. He is the origi- 
nal discoverer of that mine and I do not think any one should be allowed to take it 
from him and I do not think they could go down into him. I do not claim that he could 
follow the mineral up, but I think he could follow it down. 

Q. Is that idea of yours based upon equity or the law ? — A. Well, I suppose it was 
on equity. It has always been my judgment. 

Q. You think that ought to be the rule ? — A. Yes, sir. 

(Mr. Britton here read the law on the point in question.) 

Q. In the cases of litigation which you have known, have or have not the legal at- 
tacks upon original owners been made as to that part of the law which is based on the 
State laws ? — A. In this immediate vicinity ? 

Q. Anywhere? — A. No, I do not know that that has been the case here. There are 
so many conflicts in the location and in the surveys that where there are many suits 
now pending and adverses been filed they lap right over each other in every possible 
form. 

Q. So that there is a large amount of litigation which the original locator in that 
district is obliged to stand simply because the laws permit other claims to be surveyed 
over his surface ? — A. Yes, sir ; we have had as many as five adverses filed upon one 
application, and it is not uncommon at all to have two or three. 

Q. What is your opinion, Mr. Burchinell, as to the propriety of abolishing these local 
land recorders' offices and placing the whole thing with the United States Land Office 
in the matter of original location? — A. I think that is one of the best ideas I have 
heard of in regard to revising the mining laws. 

Q. Can you state any of the disadvantages of the present system in a practical 
way ? — A. Well, that matter was pretty thoroughly canvassed by the register. The 
locations and survey at present are recorded in the county recorder's office of the 
county in which the mine may be situated. The changes that then take place in the 
property transfers from one party to another necessitates the preparation of an elab- 
orate abstract of title, and that abstract rests with the county recorder, who may or 
may not be an honest man. His records may be at the mercy of other parties so that 
they can be altered at any time, while if it was put in the hands of the Commissioner 
of the General Land Office through his subordinates, he would always have an accurate 
and correct record from the location and survey up to the patent on file in the General 
Land Office, and that would also be on file in the local land office, one operating as a 
check upon the other. Then it would be a great convenience for the miners from the 
fact that they always have to go to the land office in recording their claims, and they 
would have no necessity to go to the recorders at all. Quite a number of these abstracts 
are made up from abstracts, often without even the seal of the county clerk. 

Q. Is the county clerk a bonded officer ?— A. I think so ; to a small amount. I do not 
know that I have heard what the bonded amount is. 

Q. Is there any check upon the fraudulent changing of these location notices in the 
county recorder's office except the honesty of the incumbent ? — A. Not that I can see. 
The location certificate is made out by the party locating the mine. He goes to the 
county recorder's office and puts it on record ; then it is returned to him. That is the 
only check. 

Q. You do not get the original, but simply a copy. Now, is there any check upon 
their furnishing you a fraudulent copy ? — A. No, sir ; none that I can see. 

Q. Then, aside from dishonesty in the matter of changing a certificate, is there any 
check upon the destruction of the certificate ?— A. No, sir. 

Q. Suppose, for instance, that your place of record was burned up, is there any 
means of reproducing the records ? — A. None whatever, except from the certificates in 
the hands of individuals. 

Q. In such a case what is there to prevent a holder of a certificate from bringing a 
forged one in here ? — A. There is nothing to prevent that at all. 

Q. Has there not been danger of something of the kind happening here ? — A. Some- 
time during the month of July the frame building in which was the county recorder's 
office was set on fire. It was supposed to be set on fire by some one interested, for the 
purpose of destroying the records of Lake County. 

Q. If those records had been totally destroyed by that fire, would it not have been 
possible then for dishonesty ? Claimants could then produce any certificates they 
pleased ? — A. Yes, sir. It would have caused interminable trouble. 

Q. In the event of the local land office being destroyed by fire, there would be the 
records in Washington from which they could be reproduced ? — A. Yes, sir. It is cer- 



256 PUBLIC LANDS. 

tainly a good idea, I think, to have the records in Washington and in the local land 
office. 

Q. Would it not be preferable to have all Iocs 1 *% filiations fixe* 3 by United States 
statutes instead of being left to the will of the° mining district or legislative enact- 
ment? — A. Yes; I think it would. 

Q. Is there any good reason why mineral lands should not follow the general land 
policy ? — A. None that I know of. 

Q. In your opinion, when an adverse claim is filed against a mineral application, 
would it not be more expeditious, as well as less expensive to the claimants, to let it 
take its course in the land office, rather than to transfer it to the courts ? — A. I think 
it would be better to let it take its course through the United States office. 

Q. Well, then, generally speaking, would or would it not, in your opinion, be a pref- 
erable policy to leave the mineral lands subject to some general policy of disposition, 
as all other land entries ; that is to say, from beginning to end within the jurisdiction 
of the United States office until patent shall issue ? — A. Yes ; I think it would be 
much better. 



Testimony of William N. Byers, postmaster, Denver, Colo. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1. 

Post Office, Denver, Colo., October 3, 1879. 
Public Land Commission, Washington, D. C. : 

Gentlemen: I had expected some questions from you orally when you were in Den- 
ver, but there was manifested no desire to learn my opinions. At this late day I am 
in possession, from some unknown source, of a copy of your circular of questions, which 
I will endeavor to answer in their order : 

1. William N. Byers, Denver, Colo. ; at present, postmaster. 

2. Over twenty years. 

3. I pre-empted 160 acres of land near Denver, making my settlement in 1860 and 
perfecting title in 1864. Encountered no difficulty under the pre-emption law ; was 
interested in establishing title in two instances under Indian reserve scrip with about 
the usual embarrassments that attend such locations. These are the extent of my 
acquisitions in agricultural lands. 

4. I entered the service of the government in the survey of its public lands in 1851 
and followed that business energetically and almost exclusively until 1856, and oc- 
casionally since. For three years was land attorney in contested cases in the laud 
offices of Nebraska in its early history. Have spent over twenty-eight years on the 
frontier upon or surrounded by government land. 

5. Governed by the rules of the department. Twenty-five years ago a pre-emption 
title could be established, up to and including the register and receiver's certificate, in 
thirty days. ISow six months are required. Many pre-emptors delay proving up as 
long as possible. Contested cases are decided quickly or protracted indefinitely, owing 
to the nature of the case, the interests involved, or the disposition of the contestants. 

6. There have been very grave abuses of the land laws, but I think the laws them- 
selves are good enough for the purposes intended. Nearer compliance with their pro- 
visions should be required. 

7. A reply would involve a very lengthy description, which seems to me unneces- 
sary, since the records of the Land Department and the reports of government explorers 
and surveyors should give all the data desired, and much more to the point than any 
cursory answer possibly can. 

8. The paramount question is water; it alone determines whether land is agricult- 
ural, pastoral, or uninhabitable. Where water is sufficient to permit a fair percentage 
of agricultural area it should be held strictly to the provisions of the pre-emption and 
homestead laws. Where water is insufficient for agriculture it should be devoted to 
pastoral interests, and the water supply should be apportioned to the largest reason- 
able number of pastoral farms it can be made to supply. Hydrography has a much 
more important bearing upon the rule that may be established for the proper division 
and disposition of such lauds than has geography ; and it will be hard to apply an in- 
flexible rule at all, since each arid section differs more or less in character or exteut 
from almost every other. 

9. I consider the present rectangular system the best for the survey of the public 
lands. 

10. Two new features can be advantageously introduced for the disposal of the pub- 
lic domain : 

First. For the arid pastoral lands of the plains above referred to, which should be 
disposed of in tracts of from 320 acres up to, say, 10,000 acres (approximately), care- 



PUBLIC LANDS. 257 

fully restricting the water control, at graduated prices, upon something like the 
requirements of the pre-emption and timber-culture acts ; requiring certain improve- 
ments, continuous occupation, and, ^r^aps, the stocking with a certain number and 
grade of domestic animals, before title is perfected. 

Second. For the timber lands of mountainous districts, which may or may not be 
mineral, in small tracts, not exceeding say 160 acres, upon conditions resembling those 
of pre-emption or homestead laws, giving only ownership of the timber and a surface 
right of possession and occupancy ; reserving all minerals and the right for all persons 
to explore for, mine, and remove such minerals, with right of way for persons, animals, 
vehicles, and machinery engaged in such work. Ownership by individuals is the only 
thing that will preserve the mountain forests. When so owned, and not before, the 
present timber will be protected, economized, and preserved and its reproduction en- 
couraged. And this is perhaps the most vital question of all in the distant future of 
these Western States and Territories. 

AGRICULTURE. 

1 and 2. Best answered by the records of the Signal Service. 

3. I cannot well confine my answers to any section less than the State. Of that I 
should say less than one-half of one per cent. 

4. My guess would be 10 per cent ; perhaps less, possibly something more. 

5. Wheat, oats, rye, barley, corn, hay, potatoes, melons, and all the vegetables adapted 
to this latitude. 

6. One hundred inches ; that is a stream filling an aperture 10 inches square under a 
head of say 6 inches. I give this as an average ; some land requiring less and other 
land more. 

7. The natural streams of the country. « 

8. The natural fertility of the soil does not seem to be materially impaired by culti- 
vation so long as it is sufficiently irrigated. 

9. From most irrigating ditches the supply of water is entirely exhausted upon the 
land. Some return a small proportion to the parent or some other stream. There is 
no regulation compelling its return, and a ditch is seldom made larger than actually 
necessary to supply the demand upon it. In fact the variation is in most cases widely 
the other way. 

10. I think that east of the mountains one-half the natural water supply during the 
actual irrigating season is now used. Some streams are entirely exhausted, others one- 
half, and yet others are hardly affected. I " guess " at the general average. 

11. Many neighborhood and personal conflicts, but none yet of very serious impor- 
tance. 

12. All of the " plains " that is not susceptible of agriculture, and most of the mount- 
ains that are not covered with timber. The pasturage of the latter is limited in sea- 
son in proportion to its altitude and consequent length and severity of the winter. 

13. Yes, as indicated in my answer to question 10, first series. 

14. Yes, as indicated in my answer to question 10, first series. 

15. Varies greatly as between localities, and is further influenced by varying sea- 
sons. Can be best answered by practical stockmen, who will incline to a very liberal 
allowance. 

16. That depends quite as much upon the grade of the cattle as it does upon the 
quality and size of the family, and gives scope for the wildest kind of speculative 
answers. 

17. The assessor's statistics will give the only basis for such calculation. 

18. The general opinion is that under cattle and horses it increases ; that under sheep 
it diminishes, or, rather, that it becomes " weedy." I do not think there is much change 
either way. 

19. Very few have fenced ; second, yes, if the fence incloses shelter, either natural 
or artificial. 

20. Other care and treatment being the same, I do not think there would be any 
perceptible difference. 

21. Natural streams and springs, irrigating ditches, and occasionally artificial wells, 
from which water is raised by means of pumps driven by wind or otherwise, or drawn 
in buckets. 

22. Practical stockmen should answer this. 

23. A dispiited point, but a majority I think claim that its growth is diminished by 
sheep pasturage. 

24. Yes, though cattle prefer the absence of sheep to their company. 

25. Many ; some serious, disastrous to property, and fatal to a number of sheep own- 
ers, perhaps to others. 

26. Must again refer you to the assessor's statistics. 

27. My opinions are fully, though briefly, set forth above. 

28. In some cases it is very difficult to find the corners ; much of the surveying has 
been badly done. 

17 LC 



258 PUBLIC LANDS. 

TIMBER. 

1. The plains have very little timber, not one- tenth of one per cent. The mountain 
regions are from one-third to one-half covered, more or less densely, with pine, fir, 
spruce, and other timber of the same general character. 

2. There is but little timber-planting as yet — that little confined to cottonwood, 
maple, elm, ash, walnut, and perhaps a few other varieties. If sufficiently watered it 
grows very rapidly. 

3. Answered in my reply to question 10, first series. My reasons are a belief that it 
is the only way to preserve the forests from needless waste and destructive fires. 

4. Yes, in price, according to quality and quantity of the timber; closely limiting 
the area, as before suggested. 

5. There seems generally a natural tendency to its reproduction, and usually in the 
same or a slightly varying character of timber growth. 

6. A majority through carelessness, a few maliciously, and occasionally by unavoid- 
able accident. This is speaking generally, and has no references to the exceptionally 
numerous and extensive forest fires that have this year destroyed millions of acres of 
the best timber in Colorado, mainly started by Indians. I think more than half the 
timber in the State is now dead, killed by forest fires. As a preventive measure sell 
the timber, as above suggested. That will not entirely stop forest fires, but it will 
greatly diminish the number and limit their extent. 

7. There is a good deal of waste from these causes. The saw-mill man or tie-cutter, 
who first enters the forest, cuts only the best. He is careless in felling his trees, and 
destroys many needlessly. He takes only one or two lengths from trees that would 
give two or three — the second or third being not quite so good, having knots, branches, 
or some other defect. The upper trunk and all the branches and top are left upon the 
ground to rot, or, more likely, to furnish food for forest fire. But the waste by chop- 
pers is a mere drop in the bucket compared to the destruction by fire. My remedy 
would be, sell the timber and surface-right as before suggested. Compel the mill-man 
or tie- cutter to purchase and pay for the land before he begins work. Then he will have 
an interest in working up the entire tree and in preserving the shrubs and young trees. 

8. "First come, first served;' 7 and he takes his choice, cuts, slashes, and (too often) 
burns at will. 

9. Yes. 

LODE CLAIMS. 

1. Have had but little experience, and that only in developing and proving up title 
to lode claims. 

2. S*hould be more definite. 

3. The "overlap" principle is very wrong and mischievous. Only one party can 
have the best right, and that point should be settled before patent is made. The gov- 
ernment should not sell a piece of ground twice. 

4. The highest point at which it approaches or reaches the natural surface of the 
ground. The angle or "dip" cannot always be determined certainly from the surface 
indications, or the incline of the " apex," though it can be judged pretty nearly in most 
cases. The angle or "dip" is liable to change. 

5. Generally speaking, yes, if he takes proper care in defining his location, but dis- 
coverers are usually careless, and exactness is neglected until the property becomes 
valuable. 

6. Yes, from failure by impossibility or neglect to do so. 

7. Not personally, but it is so claimed. 

8. Cannot answer from my own knowledge. 

9. Yes. 

10. Yes. 

11. No doubt such locations are often made for the sole purpose of embarrassing the 
actual claimants of mineral lodes. 

12. It is charged, and I believe that such things are done, but I cannot from my own 
personal knowledge give instances. 

13. Yes. It is a common saying that whenever a mine is determined to be of value 
it is sure to be attacked by litigation affecting the title, and very often it is founded 
upon the " dip " or departure of the lode beyond side lines of the surface location. 

14. I think more surface should be given in order to diminish the probability of the 
lode passing outside of the survey lines. Then I think the spirit of the provision 
allowing the owner to follow his lode should be retained. But there should be careful 
distinction between mineral lodes and mineral beds. Locations upon the latter should 
be rigidly restricted to location lines, side and end. 

15. Yes ; in the early days of this country officers elected were generally a recorder, 
a judge, and a sheriff. Record books were provided, in which all mining claims had 
to be recorded. 

10. In early days it was done by digging a hole to show work, and by planting a 



PUBLIC LANDS. 259 

stake or blazing a tree, upon which, was written the name of claimant, date, and 
description of claim. It could be amended afterward by changing these marks, pro- 
vided so doing did not interfere with other claim or claims. A record had to be made 
of such location. At present claim-making has to accord with United States and State 
laws. 

18. No. 

19. Yes ; and should be by all means. 

20. Yes, in so far as title is concerned, but there must be a ready, effective, and 
immediate recourse for the working of the mine and disposition of its product. 

21. My ideas are given above. I consider the salient features of the mining laws to 
be correct ; only stop the " overlap," increase the surface area where practicable, and 
remove the possibility of claiming a " bed" as a "lode." 

22. Yes. My idea would be two or three years. 

PLACER CLAIMS. 

2. Only in a general way, as indicated above. 

3. I think the records of the land department will answer this question best in so 
far as it refers to a patented title. A possessory title is instantaneous upon the plant- 
ing of a stake and writing a name and date upon it, but it is liable to forfeiture if not 
followed up by development in accordance with United States mining laws — i. e., by 
an expenditure in labor of $10 per year upon each 100 feet. 

4. Can give nothing that would be of value. 

5. In their operation very defective, or rather very greatly abused in practice. 

6. "Placer locations" are made to cover various kinds of fraud; located for town- 
sites ; to cover lodes and mineral beds in place. From my observation I should judge 
that very little evidence of title or requirement as to improvement is necessary. Titles 
seem to be readily and quickly obtained, and great blocks of ground are taken up as 
placer claims and consolidated into tracts of (supposed) real estate with remarkable 
facility. 

7. I have observed ground which was said to be taken and held and entered as placer 
claims upon which I do not believe a cubic yard of earth was ever washed, or that it 
was the intention of the claimants to even "prospect" it, much less work it for gold. 
It probably contains some gold, but not enough to pay for working, and the ground is 
taken up simply and solely for speculative purposes. 

8. Only that it is a frequent assertion and occasional boast that lodes have been 
secured by placer locations. 

9. There are placer lands unworked because their outlet is controlled by other than 
their owners, but whether such obstructive titles are based upon non-mineral locations 
or not I am unable to say. I think much placer ground has been taken up as agricult- 
ural land. 

Yours, respectfully. 

WM. N. BYERS. 



Suggestions to the Public Land Commission by Francis M. Case, Denver, Colo., relative to 
irrigation and surveys of public lands. 

Denver, Colo., August 25, 1879. 

Dear Sir : I am in receipt of your circular letter inviting me to make any sugges- 
tions that occur to me pertaining to matters to be inquired into by your Commission^ 
and have also received a copy of the report of Hon. J. W. Powell, of your Commission. 

With your permission I will make some suggestions pertaining to the practicability 
of abolishing the present sectional system of surveys and substituting therefor a sys- 
tem of surveys conforming to the contour of the ground, dividing the arid public 
lands into farms, &c. 

I had the honor to be the first surveyor-general of this district, and as such the first 
survey s were made under my supervision. Upon arriving here my attention was early 
called by the custom of the country to the fact that a different rule ought to obtain as 
to the surveys of irrigable lands, or rather the lands adjoining the living streams of 
water. The custom in " taking up claims " upon such streams was to take half a mile of 
water-front, running back at right angles with the general course of the stream far 
enough to make 160 acres. These " claims " were taken up on each side of the streams. 
The most practicable way I could see to secure the water-fronts to the settlers, with- 
out breaking over the established usage in the government surveys, was to have such 
streams declared navigable, so that the streams themselves should become boundary 
lines ; and before commencing the surveys I laid the matter before the then Com- 
missioner of the General Land Office, Hon. J. M. Edmunds ; but it was not thought 
advisable to declare any of the streams of Colorado navigable. 



260 FUBLIC LANDS. 

If some such system as that suggested by Mr. Powell could have been inaugurated 
here then, instead of the present subdivisional plan, it might have been better adapted 
to the wants of the settlers ; but for the unsurveyed lands in this district at this time 
I would not recommend any change in the system of surveys. 

There is an objection to the plan of Mr. Powell of surveying these arid lands into 
farms or estates according to the contour of the ground, as it seems to me, and that is 
the difficulty in preserving the farms or estates intact for more than one generation, 
under our laws of descent and distribution. If the old law of descent to the eldest 
son obtained here, such a system would be more practical, as it seems to me. 

The present system of surveys into sections is not perfect, but it is a better one than 
I could suggest, and has been established so long it were a pity to change it. The sys- 
tem facilitates the descriptions of real estate, and makes it possible for a man who is 
not a lawyer to make a conveyance of real estate, and makes it possible for a man who 
is not a surveyor to find the boundaries of a tract of land, if the land has been properly 
surveyed in the first instance. 

The suggestions of Mr. Powell in reference to the necessity of co-operative labor and 
capital for the proper development of and successful irrigation of large tracts adjoining 
the large streams are good. My own suggestion in the matter would be that each 
State in which the arid lands occur is better qualified to make the necessary rules for 
developing these lands than the general government is ; that these lands should be 
donated to the State, to be graded in price, or donated in part to aid in the construc- 
tion of large ditches and reservoirs, and sold or leased in such quantities and upon 
such terms as shall be deemed best for the settlers and the State. 

Pardon me for trespassing thus long on your time and attention, and believe me, 
Very truly, your obedient servant, 



FEANCIS M. CASE. 



Capt. C. E. Dutton, 

Secretary United States Land Commission. 



Testimony of Louis Dugal, register United States Land Office, and S. T. Thompson, re- 
ceiver United States Land Office, Denver, Colo., relative to Public Land and Mineral 
Laws. 

Denver, Colo., August 28, 1879. 

Louis Dugax, register of laud office, Denver, Colo., since 1869 : 

I think that the forms now in use in the district land offices, used by claimants under 
pre-emption, homestead, and other laws, should be reduced in number, and the entire 
method of entries of public lands be simplified. 

The law of March 3, 1879, requiring notice to be posted and published by claimants 
for public lands, who desire to prove up, should be abolished. Ths assumed preven- 
tion of fraud by this notice does not justify the large expenses and delay frequently 
imposed upon the actual settler. If there is a fraud committed by the entry, let the 
courts take cognizance. In forms for pre-emption and homestead, proof on final pay- 
ment, or proof is found on affidavit as to the non-mineral character of lands. So the pres- 
ent separate non-mineral affidavit is not necessary. The final proof, in all cases, should 
be printed in one form, on one sheet of paper. In homestead and timber culture oue 
application only is permitted, and when the lands so entered are abandoned by reason 
of lack of water, aridness, or from any of numerous causes, most of them noc within the 
control of the settler, the department holds that this is final, and he cannot file another 
application. This should be altered so as to permit the filing of more than one such 
claim by a settler after abandonment of his first. The government loses nothing by a 
settler filing more than one aj>plicatiou for lauds, because the land has been improved, 
fences p'ut up, house and buildings perhaps, and a farm marked out. The settlers 
who abandon those entries in most cases move on to unoccupied lands, and thus make 
another farm and pioneer the country. This should also be the rule in pre-emptions. 
It was the rule as to declaratory statements prior to the adoption of the Revised Stat- 
utes, 1874. 

In the practice of relinquishment of homestead, pre-emption, and timber culture, 
now the local land officers report cases for cancellation to the Commissioner of the Gene- 
ral Land Office, and await returns therefrom. Second claims cannot be initiated on 
said lands, homestead or timber culture, until cancellation is authorized by General 
Land Office, and local land officers ordered to mark the tracts on the charts as restored. 
This is an evil of great consequence to many honest and deserving settlers, who, pur- 
chasing by quit-claim deed the improvements of the person abandoning or cancelling 
lis filing, are liable to be deprived of their equity and rights by some outside non-oc- 
cupying person, who, under the ruling of fcho department, first finding out that the 
to a) officers have received orders to cancel, goes to the land office and files a claim 



PUBLIC LANDS. 261 

(which the department sustains) to said land, and forces the actual settler in posses- 
sion of the land, the purchaser of the possessory title from the cancellor or person 
abandoning, to leave it, causing him great pecuniary loss. This because of the ruling 
that titie cannot initiate until the lands are ordered restored by the department and 
letter containing such order is received by the local officers. This information has fre- 
quently reached designing persons in Colorado from Washington before the local land 
officers received it, and said persons filed claims and retained said land against the 
equitable occupying and possessory owner. Proof of cancellation and abandonment 
being taken by the register and receiver, if there be any fraud it lies in the proof so 
taken, and the act of sending it to the department at Washington does not mate it any 
the less a fraud ; so, then, the department in approving this proof of abandonment and. 
cancellation does it with eyes closed to the truth of the proof ; and when cancelling and 
ordering restoration are as much in the dark as ever. The department when sending 
the order for cancellation to the local land office does not order who shall go upon the 
land, but by the rule above cited frequently permits the person least authorized to en- 
ter upon, file upon, and hold said land. 

I have never known the department in aM my experience to refuse to cancel an entry 
for abandonment recommended by the register and receiver ; so the present practice 
of sending to Washington is solely for the purpose of keeping the duplicate township 
plats or records in order and to keep the lands clear of disputants. If, then, the local 
officers do it all but ordering restoration, why not to save time (for it requires on 
ex parte evidence in case of complaint now not less than six months to clear the land, 
and then the first legal applicant is entitled to it whether he have the possessory right 
or not, and in case of a plain relinquishment six weeks to two months are now re- 
quired) let the register and receiver take the proof, alter their plats, permit the offered 
legal filing, and send the proof to the department, so that the records can be altered 
and amended, and thus save time, litigation, and in many cases grievous wrong ? 

Some rule of law should be made to give registers and receivers the right to subpoena 
witnesses in land matters and to perpetuate testimony, either by direct issue or by the 
right to apply for subpoena to the clerk of the United States district court ; or either 
the register or receiver, to expedite business and owing to distance of office from 
United States court, should be appointed deputy clerk for this purpose. Frequently 
on trials in land office meritorious claimants are defeated and deprived of their rights 
through the fact that at present registers and receivers have no way to bring in wit- 
nesses or to perpetuate testimony. 

The absurdity of compelling witnesses in pre-emption proofs to swear to what they 
do not know, as, for instance, " the claimant's nativity," is apparent on reading, and 
the number of forms used in this proof should be diminished by consolidating all on one 
sheet of paper. The present system of proof is cumbersome and costly to the claimants. 

The present pre-emption regulations require that claimants shall swear that "neither 
am I seeking to acquire title to this tract of land with a view to sell the same on specu- 
lation." Just before he swears uuder the law that he has not conveyed or made bar- 
gain to convey said land to any person or persons. The above set out regulation, that 
he does not intend to sell said land, should be set aside, because it exacts of claimants 
that which the law did not intend. Who ever heard of a land owner not selling his land 
when an opportunity offered? And the claimant should have the law read to him, and 
then be asked, Have you complied with the requirements of the law? Answering yes,. 
and swearing to the same, he should be permitted to make entry. 

There should be some method adopted in the General Land Office whereby the de- 
cisions of the Commissioner, in cases coming up, may be sent out in printed form immedi- 
ately upon being rendered to all district land officers, thus giving uniformity to 
rulings in all district affairs, and preventing the present mixed manner of ruling by dis- 
trict officers, and preventing expense to parties litigant. (See system at present in vogue 
in Adjutant-General's department, United States Army, of promulgating orders.) 

My judgment is that the arid and pasturage lands should be segregated and donated 
to the States. All unoccupied or reserved surveyed lands of the United States here- 
after shall be subject to homestead, pre-emption, and timber-culture claims under ex- 
isting laws. When present unsurveyed lands are surveyed and brought under the land 
system of the United States parties occupying the same should have six months within 
which to come to the district land office and file. That after the expiration of said 
six months all lands should be subject to private entry at $1.25 per acre, in unlimited 
quantities. If not sold after being offered at $1.25 per acre within one year, the price 
of the said land shall be $1 per acre, and so on each year reducing the price until it 
reaches 25 cents per acre ; then to 10 cents per acre, and then to 5 cents, which is one 
cent over the estimated cost of surveying the public lands of the United States. That 
all pre-emption locators shall have one year in which to make payment for their lands. 
Failing to do this, the land to be subject to private sale under the graduated system 
above proposed. In case of homestead and timber-culture settlers, they to come to the 
district land office each year and make proof of residence on and use of the land, a& 



262 PUBLIC LANDS. 

required under the several laws, or occupancy by herds as pasturage lands. Failing in 
this the lands to be sold under the graduated system above proposed. 

I favor square location in mineral and lode claims, with side and end lines. To save 
litigation I favor the abolishment of recorders under State laws in mining districts, and 
favor the transfer of filing claims for mines to the United States register and receiver 
of land districts, because the United States should hold onto all its lands until patents 
issue. 

The township and section corners of the. present system of land surveys are not per- 
manent and cause trouble and expense to settlers to find their lands, they frequently 
having to hire civil engineers to find their lands. 

I favor the retention of the present system of rectangular surveys, provided it is ac- 
curately carried out and the method of the survey improved. All the lands depending 
upon irrigation in this district are taken up. 

TIMBER LANDS. 

The cutting of timber on the public lands should be regulated by law. The lands 
should be sold at private sale or entry at $1.25 per acre, and there should be a restric- 
tion in the law opening them up to private entry that no tree under 8 inches, as an 
illustration, should be cut down. Self-interest in purchasers will sufficiently prevent 
other waste. 

The destruction and waste of timber on the public lands are at present serious and 
wasteful, should be stopped at once, a,nd if the present laws continue, new penalties 
should be enacted, and the authority under it to repress waste, &c, be given to the 
registers and receivers of district land offices within their respective districts. Being 
already officers, the new duties being in the line of their present duties will be most 
cheaply and efficiently administered. 

As an illustration of the extent of the arid lands in this district, I take the county 
of Arapahoe ; it is 5 by 27 townships in area, containing 135 townships, 6 miles square, 
and embraces 4,860 square miles, out of which say 170 square miles might be made 
cultivable lands by irrigation, but at present not more than 50 square miles are set- 
tled and actually cultivated; also the county of Weld, also in this district, as nn 
illustration of aridity of the lands herein. It is ll-£ by 27 townships in area— contain- 
ing 297 townships, 6 miles square — counting fractional townships. It is 10.692 square 
miles in area, out of which about 700 square miles might be irrigated and made culti- 
vable, lying below Arapahoe County. If Arapahoe County takes from the Platte 
River water to irrigate its irrigable 140 square miles of irrigable land, Weld County 
would suffer for want of wa^er (as the river runs through Arapahoe and Weld) and 
Weld could not irrigate to exceed 100 square miles of cultivable lands. Three- 
ninths of our lands are arid or pasturage lands. The water fronts of streams are all 
taken up in irrigable sections in this district, and the supply of water very limited. 

August 28, 1879. 
Samuel T. Thompson, receiver of the land office, Denver, Colo., since March, 1875, 
heard the above read and fully indorsed the same. 



Testimony of A. M. Faliringey, stock-grower, Watkins, Colo., relative to public lands. 

A. M. Fahringer resides at Watkins, Colo. ; has been engaged in sheep raising for 
four years, but has recently sold out and invested in cattle. The country where he 
resides is all suited for pastoral purposes, and believes that a large area of nearly a 
million acres could be made arable by diverting the waters of the Platte in winter 
and spring and forming large reservoirs. He believes that the pasturage lands might 
properly be thrown open to private entry and that the amount to each purchaser 
should be limited, though he has no opinion as to the amount of acreage to which it 
should be limited. The homestead principle applied to large tracts he thinks would 
also be beneficial. Many poor men who would like to raise cattle would thus bo pro- 
vided for, whereas if they were required to purchase outright the expense might be 
beyond their means. He believes generally that the public welfare would be best pro- 
moted by some system of laws by which the government title to lands could be trans- 
ferred to individuals in the largest number of holdings, but has not given the matter 
sufficient consideration to enable him to suggest any detailed plan for accomplishing 
this. 

About 4 to 6 acres are required to support a head of stock in his vicinity. The 
giowth of grass has not diminished. Many cattle men fence their ranges, but many 



PUBLIC LANDS. 263 

more do not. The land along the streams in his vicinity has been chiefly taken up. 
He himself has taken up three 160-acre tracts under pre-emption, homestead, and tim- 
ber-culture laws. The several tracts sometimes form a continuous line, sometimes an L. 
Water-holes are frequently located in 40-acre tracts surrounding them. The general 
policy of locators is to gain control of as much water front as possible, because they 
gain thereby control of an indefinite extent of land around the water. 



Testimony of M. H. Fitch, receiver land office, Pueblo, Colo., relative to public-land claims 
surveys, pastoral and timber lands. 

August 29, 1879. 

M. H. Fitch, receiver land office, Pueblo, Colo., receiver for three and one-half 
years : 

I think the present system of filing or entering on lands is incumbered with too 
much form ; many of the papers now used could be dispensed with with profit to the 
government and the claimants. I think that all the papers used in homestead and 
pre-emption entries could be condensed on one sheet of paper. The notice of inten- 
tion to prove up now required to be posted and published should be abolished ; it 
is burdensome and expensive to the claimant. 

The cancellation or abandonment of homesteads either by relinquishment or aban- 
donment on proof should be done by the local officers. They now initiate abandon- 
ment and cancellation and receive the papers, why not let the register and receiver 
permit at once, after relinquishment is made or abandonment is proved, the "legal 
settler" to file at once. Certainly the purpose of keeping a check on the district 
officers can be as easily done by this method, and letting the register and receiver 
report the abandonments and relinquishments at once to the department. Injustice is 
frequently done worthy settlers under the iniquities practiced under this rule — all this to 
be subject of course to appeal. 

The present rectangular system of surveys of the public lands should be continued, 
provided the present method of surveys can be improved. Settlers complain of the 
absence of corners, and irregularities. The earlier survey stakes were made with cot- 
ton wood posts and lasted about 3 years ; now they use willow or stone. Willow lasts 
less time than the cottonwood. Some method should be devised for metallic or other 
permanent posts to mark township corners, say in the center of a group of four town- 
ships. At present settlers are frequently compelled to employ at large expense sur- 
veyors to go to their claims and find their exact location ; nearly always have to do 
this. The survey corners or mounds of stone with pits can hardly ever be found now 
in many townships. 

Under the present system of surveying the deputy surveyors mark much land min- 
eral on the plats which is not mineral, and no reason for it except that it lies in the 
mineral belt of a region. The agricultural claimants are put to great expense in show- 
ing the non-mineral character of the lands. 

Registers and receivers in contests should have the right to subpoena witnesses and 
perpetuate testimony. There should be some method whereby registers and receivers 
at district offices should by circular all be notified at once of decisions in land cases 
of general importance. Files of these decisions being kept uniform rulings could be 
made and many litigations be prevented. 

In 1876 this office sent up the affidavits of 27 settlers in said township showing that 
lands in township 29 south, 68 west, were non-mineral, and they have never been 
heard from since. In the mean time they have each been compelled to make proof of 
non-mineral character of land at a cost of say $20 each. 

There are about 15,000,000 acres in this land district. Five hundred thousand acres of 
the lands in this district can be irrigated, provided the lands could be bought in large 
tracts so that aggregated capital can build canals and ditches. All the rest are arid 
lands, with good grass in the mountains, with occasional water-holes. It requires about 
25 acres of pasturage lands in this district to feed a beef for market. I have a tract of 
400 acres fenced, along the river Arkansas, and this season it would not support 16 head 
of cattle through the summer. The year around cattle do not do well under fence. 
Fourteen million acres of the lands in this district can be called arid and pasturage. 

I recommend that the pasturage lands be subjected to private sale at $1.25 per acre, 
with a graduated price, running down each year until it reaches 5 cents per acre. Some- 
of this land will sell for $1.25 per acre. Some will not sell at all. I believe the land 
should be sold so that the present occupants should be preferred, and the privilege of 
buying be given them in proportion to their stock. Very little timber land in this dis- 
trict. There have been about 20 entries under the timber-culture act. Cottonwood are 
planted; a good tree; grows in five years, say, 9 inches. » 

Timber lands are being devastated in the mountains, and should be protected, and 



264 PUBLIC LANDS. 

the register and receiver should be given authority under the law to protect the timber 
in their respective districts. I think the timber lands should be reserved for the use of 
the actual settlers in the State. 

In the matter of the Los Animas grant south of the Arkansas River, the original grant 
from the Mexican Government was about 4,000,000 acres, and the grantees of the original 
grantors only had a small portion of their claims confirmed to them by the United States 
Government. This left the title of the balance of this grant in the United States Gov- 
ernment. The derivative claimants got about 98,000 acres. All of it is subdivided. 
There are now about six or seven townships or parts of townships yet not open to settle- 
ment. These townships are now filled with settlers with permanent homes, who desire 
to get titles to their lands. These lands should be at once opened to these settlers. 

The case of Mrs. Hicklin is in point. She had a tract of 5,000 acres of land in this grant 
awarded her. On account of the patent not being issued, jumpers went on the land and 
have made settlement. One of her sons was killed and the other badly wounded and 
made an invalid by one of these j umpers shooting them. This all results from non-issue 
of patent in her case, which makes people believe that her title is not good and they try 
to take possession of her lands. The money for the survey of her tract she deposited 
with the surveyor-general, where it now is. 

It now takes, under the pre-emption and homestead laws, an average of one year to 
get a patent. I know of cases entered in 1872 and 1873 and 1874 where the patents are 
not yet issued. This should be remedied. 

Fort Eeynolds reservation in this district, 20 miles east of this city, has been turned 
over by the War Department to the Interior Department, and now awaits an appro- 
priation for paying expenses of sale. There are about 15,000 acres of the best land in this 
State in this tract. It should be at once opened for settlement. Three years ago this 
office called attention to this. 

I think that the mining recorder of mining districts should be abolished understate 
law and the filings of claims should be made first in the United States district land 
offices. Why should not the government in mineral lands as in other classes keep the 
titles until patents issue ? 

I think that coal-land tracts in this district should be reduced to half the size at 
present, or bring it under the mineral laws the same as lode claims, which should be 
square locations. There are more coal lands and better coal in this district than in all 
the rest of the State. There are about 25,000 acres, and 20,000-at Canyon City, and the 
price is too high. A settler now must take 40 acres of coal lands at $10 per acre if 15 
miles from a completed railroad, and $20 if within the 15 miles of a completed road. 
There should be one general mining law adopted by the United States government. 

About 100,000 acres of the 500,000 acres of land that I called irrigable are cultivated 
in part in this district, but not profitably. 

. Mr. Ferdinand Barndoller, register United States land office for ten years, by H. 
K. Pinckney, after the above statement was read to him, corroborated and indorsed, 
the same. 



Testimony of Chas. E. Gast, Pueblo, Colo., relative to railroad grants. 

Pueblo, Colo., October 2, 1879. 
To the Public Land. Commission, Washington, D. C. : 

Gentlemen : I think the attention of Congress should be particularly called to the 
present state of our laws respecting the right of way of railroads over the public land. 
Prior to the passage of the act of March 3, 1875 (Stats, of 1874-75, page 482), every 
railroad company whose contemplated line was through public laud was given the 
right of way by special enactment. Numerous bills of this character were passed at 
each session of Congress ; such grants were given almost as a matter of course, and 
were not considered the bestowment of any especial bounty. 

These especial acts were of a twofold character. In one class the duty is imposed upon 
the company of filing a plat, which shall stand as a designation of the route, and 
which, when traced upon the records, shall charge settlers with notice of the ease- 
ment (16 Stat. 395 ; 17 Stat. 202, 212, 224, 340, 343, 393, 612; 18 Stat. 130, 274, 306, 309). 
The necessity of this in properly administering the system by which public lands are 
thrown open to purchasers is apparent. 

In another class no such requirement obtains (14 Stat. 212,237,240.290,294; 16 
Stat. 192 ; 17 Stat. 280, 339). 

It must be manifest to every lawyer that it was the intention in the latter class of 
enactments to grant a mere license or prvoilege to enter upon the public lauds and appro- 
priate a specific location ; and that Congress intended that an entry, coupled with pos- 
session and use, was necessary to an investiture of any beneficial interest in the partic- 
ular lands over which the road may be built. The acts conferred simply a general 
authority to appropriate a location for corporate purposes, without which protection 
the acts of the grantee would be tresspasses. In advance of actual appropriation in 



PUBLIC LANDS. 265 

good faith the public lands were to remain open to purchasers, who were to take title 
unincumbered by any floating easement that could afterward be asserted against 
them by the companies. 

Few will say that such was not the intention of Congress. To impute any other is 
to say that Congress intended to overturn the entire policy of the government in 
administering the land system, which has always been to dispose of its lands free 
from every charge except such as the records disclosed; and as the acts in question do 
not provide for notice of record, the conclusion is irresistible that Congress intended 
it should appear from actual occupation. 

Such has been the ruling of the Interior Department. (See opinion of Secretary 
Schurz in overruling protest of Denver and Eio Grande Railway Company against the 
approval of plat of the Pueblo and Arkansas Valley Railroad Company, under act of 
March 3, 1875.) 

A recent decision of the Supreme Court, at the October term, 1878, seems to throw 
doubt upon this matter. The case arose between the Denver and Rio Grande Com- 
pany, claiming under the act of June 8, 1872 (17 Stab., 339), and the Canon City and 
San Juan Company, claiming under the act of March 3, 1875. The route of the Den- 
ver and Rio Grande Company, as described in its articles of incorporation, extends 
like a spider-web along every river and through every valley and across every mount- 
ain-pass in Colorado and New Mexico. It is simply magnificent as a ramification of 
railroads on paper. The grant to the company gives the right of way two hundred feet 
in width, without providing for the filing of a plat or record notice of any kind what- 
ever of the intended specific location. Yet the Supreme Court say, " when such loca- 
tion and appropriation took place the title which was previously imperfect acquired 
precision, and by relation took effect as of the date of the grant" ; thus placing acts of 
the character mentioned upon the same footing in this regard as grants of alternate 
sections in fee, which have always provided for a withdrawal from sale within certain 
limits and a recognition of the rights of settlers whose claims intervened between the 
date of the grant and the location of the road. It is true, the opinion as a whole does 
not seem to comport entirely with the sentence above quoted, but it is sufficient to 
say that the grantees holding under such special acts have always strenuously claimed 
the extent of their rights to be as above stated. 

If this claim is well founded, it is easy to see that it is legislative improvidence of 
the most extravagant kind, for it implies the fact that the possession of settlers inno- 
cently acquired must yield to the subsequent assertion of an easement of which they 
could have had no possible notice. 

The question of a remedy, however, is a difficult one. If these grants are complete 
in themselves — if they confer a beneficent easement anywhere and everywhere where 
the grantees have corporate authority to build, and without actual appropriation — 
then it would seem that Congress could not derogate from them. But if Congress has 
conferred nothing more than a present license to enter upon the public lands and occupy 
a particular way, then, like any other proprietor, it may revoke the license so far as it 
has not been executed by the grantee. In the one case the grant is complete and can- 
not be resumed; in the other, it is revocable at any time by the will of Congress so far 
as the license has not been executed by actual occupation. 

It is highly advisable that all railroad companies should be compelled to take their 
title under the general act of March 3, 1875. It is a very beneficial enactment, and 
there is no good reason why all companies should not observe its requirements. If 
there is any legislation within the power of Congress by which to resume such broad 
privileges as are contained in some of the special acts I have referred to it, should be 
had. 

I think, also, that the act of March 3, 1875, should be amended as to the proviso of 
the fourth section, by abridging the time of five years to two years. 
Very respectfully, 

CHAS. E. GAST. 



Testimony of Louis Goodwin, Trinidad, Colo., relative to the United States Statutes and min- 
ing matters — square location. 

Trinidad, Colo., September 6, 1879. 

Louis Goodwin made the following statement : 

I only wish to refer to one point. I think the United States Statutes ought to be 
revised in regard to mining matters, but I do not believe in the square location for 
this reason : A man may think he has a rich mine and proceed to erect expensive ma- 
chinery to develop it, and just as he gets in full operation the lode may run out of his 
side lines, and as he cannot then, as now, follow the dips, spurs, and angles, he loses 
all the money he invested. I think such a law would tend to obstruct mining devel- 
opment, yet I think it would be well to revise the mining laws. 



266 PUBLIC LANDS. 

Testimony of William M. Hall, Trinidad, Colo., relative to cattle ranges, fencing, sale of pas- 
turage lands, water, agricultural lands, pasturage homesteads, stock. 

Trinidad, Colo., August 30, 1879. 

William M. Hall, of the firm of Hall Bros., cattle raisers and dealers, Madison, 
Colfax County, New Mexico, made the following statement : 

Our cattle range in herds of about 1,500 head on an area about 40 by 60 miles. If 
we had an opportunity to purchase these pasturage lands from the government at a 
reasonable price we would gladly do so, as we are very much troubled by people driv- 
ing their herds, both sheep and cattle, over our range. I think it would take about 30 
acres of that land to raise and fatten one beef. I have talked to men who lived in 
Texas, where the ground produces a great deal more grass than here, and they said 
that there from 15 to 20 acres would keep a steer in a pasture that was fenced. I know 
that Texas produces one third again as much grass as this country does. I think that 
here 30 acres would not be any too much. These difficulties which now arise between 
stockmen could be obviated if the government would allow them to buy the laud, and 
then they could fence it. Fencing is much better than allowing the stock to roam at 
large. If a man could afford to pay the price the government put on the land he would 
tiit'n improve it, as he would feel secure in his home and couhl protect himself against 
all intruders. I think that ten cents an acre would be a sufficient amount tor it, tak- 
ing it in large bodies. There are many places where there is uo water within 12 miles. 
By boring wells at a great expense they could get water there sufficient for the stock. 
None of this land is fit for agriculture, and would only do for stock-raising. There is no 
agriculture in that country. Where we have water we have tried it, and we can buy 
grain in Kansas cheaper than we can raise it here. There are very few ca ttle men in our 
county. There are quite a number of men from this town that have large herds of 
cattle over there in our range. They have come up on the ridges. Ail our cattle ran 
in one body, and all the water in this section of country is needed for the stock that 
is there now. If there should be a general drought in that district we should all lose 
heavily. This would have been the case this spring if we had not had water just when 
we did, and w r e may have a drought yet. The district is overstocked. The grass will 
not sustain the cattle. 

I believe that the government should give the refusal of the land first to the peo- 
ple who are living there now and have lived there. I do not believe in monopolies — 
one man buying the whole country — but I do think that any man ought to be allowed 
to buy land in proportion to the stock he owns. 1 would not allow a man to buy 
more land than he has stock to graze. There are plenty disposed to buy. The small 
owners would be bought out by the larger men. This land is perfectly useless for any- 
thing but stock-raising purposes. We have as good a farm at our place as anybody, 
but 1 do not think a man can make a living off of it. 

I think it would bo an excellent thing if a law could be passed enabling the small 
stockmen to take up pasturage homesteads, though in time the land would get in the 
possession of the big cattle men. If all alike (large and small owners) had the privi- 
lege of buying as much as they like in proportion to their herd, they would have an 
equal chance. Homesteading might give rise to perjury and fraud, the large owners 
emploving men to homestead and then buying them off. I do not really believe the 
land would be actually fenced, but if it passed into private ownership Territorial law 
would protect the owner, and if it did not then he could fence. It costs $125 a mile 
to fence. 

It is to the interest of all concerned that these questions should be settled in some 
definite manner, in order to avoid the trouble that will surely rise in the future, and 
which, under the present system, is likely to occur at any time. 

I think if settling the country under the pre-emption and homestead principle as 
now authorized by law was tried it would drive the cattle men out of the country, 
and the wealth of the Territory would walk off with them. As the agriculturists de- 
pend upon the stock- raisers, it would be ruinous. 

I think Colorado is little better for agricultural purposes than New Mexico. 

There is one more point I should like to speak of. I give big prices for bulls, in 
order to improve my stock— from $60 to $400 apiece — but under the present system 
they range at large, and serve other stock as well as my own. If I could possess my 
land I could fence, and thus improve my stock. A better class of stock, and as more 
land would be in private ownership more taxes, would be the result of this disposal of 
the land. 



PUBLIC LANDS. 267 

Testimony of Edwin Harrison, president of Saint Louis Smelting and Refining Company, Lead- 
ville, Colo., relative to mineral laws. 

Leadvllle, Colo., August 26, 1879. 
Edwin Harrison, at Leadville, Colo. : 

Beside in Saint Louis, but since 1868 have occasionally resided and have continu- 
ously done business in various other Western States and Territories. Since above date 
I have had considerable practical connection with mines and mining, and am now 
president of the Saint Louis Smelting and Refining Company and of their several aux- 
iliary corporations. I was on the geological survey in Missouri in 1859, and for several 
years was one of the board of managers. 

In my opinion a ruin era? applicant should not be permitted to have a survey over- 
lapping a prior mineral survey until he had first proved abandonment, or that he had 
a lode entirely distinct and separate from that first surveyed. Nor do I think that over- 
lapping locations of mining claims should be permitted except upon similar proofs. 

I would call the top or apex of a lode the line where the vein outcrops from the 
rock in place. In my view there might be several apexes, with horses between, which 
seems to be contemplated by that part of the statute, which provides that where two 
or more veins unite the elder location shall prevail. In other words, it is the intersec- 
tion of the plane of a lode with the earth's surface — meaning by the earth's surface 
that part thereof where the rock in place is found. The top or apex, the course and 
angle or direction of the dip cannot always be determined in the early workings of 
the veins or lodes. Veins sometimes follow the stratification of stratified rocks, and 
sometimes cut across some, and this can only be determined by development, which 
will necessarily vary according to the facts of each lode. In further elucidation of 
my idea I consider the apex to be the outcrop of a lode, whatever its width may be, 
and do not confine it to the highest or upper side of the lode. In my opinion that 
was meant by the makers of the United States mineral laws. 

In view of the fact that the terms top or apex, course and angle or direction of the 
dip are essential parts of the existing law, I do not think that the rights of a discoverer 
are sufficiently protected, and great litigation and injustice has grown out of the im- 
possibility of seasonably determining thfi above points. 

The outcrops of lodes are often wideAhan the legal width of claims, whether under 
federal, State, Territorial, or local regulations. 

The outcrops of narrow lodes sometimes so deviate from a straight line as to pass 
beyond the side lines of claims. 

I am not clear whether the practice of permitting lode locations upon ground in the 
absence of known mineral works to the advantage or disadvantage of the discoverers 
of true lodes. There are two sides to the question ; but I am clear that no party should 
be permitted to locate over the dip of a previous location unless he first affirmatively 
proves the discovery of mineral in said subsequent location, which lode should prima 
facie be different from the first lode. I have known instances, and notably that of the 
iron mine in this district, where Stevens & Leiter located on the outcrop of a true vein, 
and subsequently several other parties located parallel claims on barren ground adjoin- 
ing the side lines of Stevens & Leiter, but over the dip of their iron mine, and sinking 
down through such barren ground until they struck the dip of the iron mine stopped 
the development of that mine by injunction, clouded the title, and put the owners to 
tedious and expensive litigation until they could prove the identity of the lode by 
digging out said subsequent parties. As a rule the discoverers of rich veins or their 
assigns are burdened with costly litigation to defend their rights from subsequent loca- 
tors, and such litigation is generally directed to that part of the dip of the lode which 
has passed beyond the side lines of the surface tract. 

In view of the known variety and complexity of the mineral deposits in such place, 
it is not possible, in my opinion, to permit locators to follow the dip of their claims 
outside the side lines without provoking litigation, and one reason would obviously 
be that a connection between the workings of two claims would have to be made at a 
sufficient depth in order to establish the identity or non-identity of the two claims. 
That would consume much time, and in the interval the presumed conflict would nat- 
urally and often innocently provoke litigation and controversy. 

In my opinion the initiation of a mineral claim by filing notice of location should be 
made with the United States land officers in some form analagous to the filing of de- 
claratory statements under the pre-emption law, and all the jurisdiction of officers 
outside of the United States should be abolished. The several local districts are cre- 
ated without safeguards and with absolute disregard of uniformity. The officers are 
not necessarily responsible to any one, and there is no check upon fraud, except the 
personal integrity of the incumbent. The certificate of location filed with these out- 
side and irresponsible parties is the foundation of the mineral claim, and under the 
present law the United States has to accept a copy of that record, with no other guar- 
antee than the certificate of the aforesaid outside officer. If that is fraudulently 
changed by collusion between the locater and the mining recorder the government and 



268 PUBLIC LANDS. 

other claimants have no good means of detecting the fraud ; or if the local records are 
destroyed, by fire or otherwise, there is no duplicate record to insure their accurate 
reproduction. The mining title of an entire community could easily be thrown into 
endless confusion and litigation by burning of these outside records in charge of irre- 
sponsible parties ; and the opportunities for fraudulent changing or similar manipula- 
tion are unlimited. This very district had a narrow escape within the past six weeks 
from a lire in the court-house, where a portion of our mining records are stored, and 
which fire was supposed to be incendiary. If that had destroyed said records the 
titles to Leadville mines would have been thrown into endless confusion. As an il- 
lustration of the imperfect manner in which these mining records are kept by these 
outside and irresponsible parties I would mention one incident within my personal 
knowledge: Two years ago I wished to examine some of, the mining records kept 
by the recorder of this district, as elected by a miners' meeting. I found that he had 
either died or left the country for parts unknown, and that his successor had never 
been elected, and that these local mining laws and records would be found in the 
hands of one William D. Breece. Said Breece had no connection with tbe custody 
of said records even under the local mining organization ; and said records could ap- 
parently have been in any other party's hands as readily as in his. I could not ascer- 
tain with absolute certainty even that Breece had said records, and have not been 
able to see them. The point of the illustration is the loose manner in which these im- 
portant records are handed about from party to party, and this aside from the oppor- 
tunities for fraud if they remained in charge of the party elected by the miners' meet- 
ing. 

With reference to litigation arising upon adverse claims, I am clearly of opinion from 
actual experience that such litigation should be confined to the United States land offi- 
cers and should not be thrown, as at present, into the courts. The present practice of 
stopping the jurisdiction of the executive officers and throwing the parties into the 
courts is attended with wearisome delays and exceeding expense. The litigation 
would be terminated with infinitely less cost and time if the United States executive 
department were not required to yield its jurisdiction to the courts, both State and 
federal. Many bogus adverse claims would be cut off at the beginning and litigation 
be ended then and there. I can see no good reason in mineral conflicts prior to issue 
of patents in ingrafting upon the public land^system a mode of determination differ- 
ent from that prescribed for contests under any other of the public land laws. I have 
had. costly experience in such litigation. In one case, begun and terminated in the 
executive department, I was antagonized by a considerable part of a large commu- 
nity, and if I had been thrown into the local courts I would not only have been sub- 
jected to enormous expense and actual risk to property, but it is quite probable that 
no jury could have been impaneled to fairly try the case. In another case part of the 
conflict went to the executive department for decision and another part at the same 
time to the courts. The one case has been completed after progressing through all the 
forms of appeal in the executive department, while the other case has not yet even 
been tried in the court of first jurisdiction. 

I would call attention to another defect in existing law. The statute authorizes a 
tunnel location to take all mines in its line for 3,000 feet and to the distance of 750 
feet on each side thereof which had not been actually discovered by other parties prior 
to the mere record of the line of the tunnel location, and to hold all such lodes which 
might thereafter be cut by said tunnel by the locators doing a very small amount of 
work every six months, the amount of work not even being specified in the statute. 
It seems to me inconsistent to give such latitude to tunnel locations, while locators, 
by shafts from the surface, are compelled to show actual discoveries before acquisition 
of rights. 

Furthermore, I can see no reason for confining discoveries to shafts or tunnels. In 
my opinion discoveries should be equally allowable from drifting. The true object of 
the law should be the discovery of the lode, no matter how made. 

Excepting the defects generally pointed out by me, I should give a qualified approval 
to the present federal mining laws ; but I am clearly of opinion that litigation would 
be practically terminated, substantial justice be done to all miners, and the actual de- 
velopment of mines be most satisfactorily secured if the present system of lode claims 
with the right to follow the dip beyond the surface ground should be abolished, and 
in lieu thereof the mineral lands should be sold by area in not less than 20 nor more 
than 40 acre tracts, and the right to ore be restricted to planes drawn vertically down 
through the side and end lines of the tract. I would, in other words, sell a tract of 
mineral land, limited by the common-law rule as in all other real-estate proprietorship. 
These tracts should always be rectangular, unless where rights previously vested should 
necessarily prevent, and should be located by the cardinal points of the compass ; that 
there should be an established proportion between the length and breadth of those 
tracts; as, for instance, that they should either be a square or that the width should 
not be less than half of the length, the object being to prevent stringing out a claim 
in a long, narrow tract, and that the discovery shaft, tunnel, or drift might be upon 
any point in the tract claimed. 



PUBLIC LANDS. 269 

Testimony of Hon. Moses Hallett, of Denver, Colo. 

To the honorable the Commissioners to revise the Land Laws of the United States : 

To answer at length the questions relating to lode and placer claims on the mineral 
lands submitted by the commissioners would require more time than I am able to give 
to the subject at present. 

I believe that, the law concerning such claims now in force is wrong in principle and 
mischievous in its operation, and I beg to offer some suggestions on that general 
topic. If the present method of granting lodes and veins as such is to be continued, 
I have no suggestion to make of any material change in the law. 

In all acts of Congress regulating the manner of locating, holding, and acquir- 
ing title to lode claims on the public lands it is assumed that lodes and veins are 
separable and distinct from others of like kind and from the general mass of the 
mountains in which they are found. 

The unity and individuality of the thing to be acquired by the miner and conveyed 
by the government is taken as a fact admitted, or at least clearly ascertainable. 

The tirst act on the subject was passed in 1866 (14 Stat., 251). It speaks of " a vein 
or lode of quartz or other rock in place v as the subject of the grant, and in the third 
section it is declared that no patent shall issue for more than one vein or lode. This 
language conveys the idea that a lode when found may be easily traced and distin- 
guished from all others in the same neighborhood. So in the act of 1872 (17 Stat., 91), 
it is provided that the location shall be made on a vein or lode, clearly implying that 
such vein or lode has qualities by which it may be easily defined. This act is embodied 
in the Kevised Statutes without material alteration, and is the law now in force on the 
subject. 

In thus recognizing the individuality of veins and lodes Congress followed the cus- 
tom of miners in this country, which is based on the same theory that a lode may be 
identified beyond question, having length, width, and depth which may be readily as- 
certained. In this there is radical error ; not as to the typical vein, which is a single 
fissure or rift in the country rock filled with mineral matter differing from the inclosing 
rocks. 

The walls of such a fissure may furnish unmistakable boundaries which the law 
may safely recognize as limiting the miner's right. Probably the mines first opened 
and worked were of that character, and the miners, knowing no other, readily fell into 
the erroneous belief that all valuable deposits may be easily traced in their course 
through the earth. But all fissures are not well defined, and all valuable ores are not 
found in fissures. While some lodes have very distinct walls, others have but one wall, 
and others again none at all. And among well-defined fissures, some are known to in- 
tersect each other in such way that it is difficult to determine where one begins and 
another ends. 

And these are not the only elements of uncertainty. Associated with the ores of 
silver and gold there is usually a gangue or vein matter, which may be anything dif- 
ferent from the country or mass of the mountain in which the lode is found. The dif- 
ference may be very slight, as that it is softer ; that it is tinctured with some metal 
not found in the inclosing rock, or that it is of another color, and the like. If it runs 
with the ore, although it may be elsewhere found without ore, it is regarded by most 
miners as carrying the character of a lode. So that wherever it may extend, indis- 
tinctly perhaps, and if there be a seam or crevice in the rocks to which it appears to 
be confined, there, with some interruption, the lode may also extend. And the courts, 
instructed by the miners as to what a lode may be, have sanctioned this doctrino, with 
such exceptions only as seemed necessary to avoid interminable confusion. 

If, now, we consider what differences may arise as to what gangue or vein matter 
may be, and its presence in a given locality; whether it extends over a large space 
and embraces several bodies of ore or is confined to narrow limits; whether it is con- 
tinuous for a given distance or wholly irregular and broken by intruding rocks from 
the country, and the like, we may have some idea of the questions contested in the 
courts under the present law. 

In this jurisdiction cases often arise in which witnesses to the number of fifty or 
more are arrayed against each other in irreconcilable conflict over such questions, and 
juries, unable to come at the truth in a mass of conflicting evidence, often disagree or 
yield to the voice of caprice and prejudice. 

It is safe to say that the greater part of the legal complications for which mines 
are notorious over all other property grows out of the practice of dealing with lodes 
as distinct and severable from the earth in which they may be found. In condemna- 
tion of that policy, it is only necessary to say that very many lodes have not that char- 
acter, and of those that are pretty well defined it is often difficult and sometimes 
impossible to distinguish one from another. If we can return to the common -law 
principle, which gives to the owner of the surface all that may be found within his 
lines extended downward vertically, we shall avoid hereafter fully one-half the 
controversies that now embarrass the mining interests of the country. 



270 PUBLIC LANDS. 

Much more may be said of the difficulties encountered in following lodes under 
ground, but it is not my purpose to discuss the subject at length in this paper. It is 
enough to say that lodes are often so indefinite in extent and indistinct in outline 
that they should not, as such, be granted by name or other description. The govern- 
ment ought to define with certainty the thing granted, which is not done in describ- 
ing it as a lode in a certain locality, with the right to follow it to any depth, although 
it may enter the land adjoining. But if a tract of land should be conveyed with all 
it contains, the utmost certainty attainable would be given to the grant, and the per- 
plexing questions to which I have referred would be removed. 

Passing from this general view of the subject, I wish to refer to a class of lodes 
quite numerous in some districts, which decline but slightly from the plane of the 
horizon. They are usually found near the surface, and, having but little inclination, 
they are easily accessible by means of shafts over a large area. If the ground is level, 
or nearly so, and the lode has a dip of 5° to 25° only, the depth will not greatly in- 
crease in the direction of the dip for a considerable distance from the point of discov- 
ery. If the surface declines or rises in the direction of the dip, that distance will be 
correspondingly increased or diminished. If the ground is level or it declines in the 
direction of the dip, there is little chance for another lode above one that is so nearly 
flat. If the mountain rises in the direction of the dip, there is no greater .probability 
of finding a lode above the first until a great elevation has been reached ; so that in 
most cases the grant of a lode so situated by its top and apex, according to the pro- 
visions of the act of 1872, is in its practical effect a grant of what lies beyond in the 
direction of the dip as far as the lode extends. 

This control over contiguous territory is in opposition to some parts at least of the 
acts of 1866 and 1872, in which the surface to be taken in one location was restricted — 
in the first act by the local law, and in the second to 1,500 feet in length by 600 feet in 
width. Those acts proceed on the theory that all veins and lodes are in a somewhat 
vertical position, and probably Congress had no intention to enable the locator to en- 
large his territory by pursuing the vein beyond the side lines. Yet the right so to 
follow the vein is given, and it is not limited to any class of lodes. 

It has been claimed by gentlemen of ability and learning that the act of 1872 is not 
in fact applicable to veins which depart from a perpendicular course by more than 
45°. The language of the third section of that act, " although such veins, lodes, or 
ledges may so far depart from a perpendicular in their course downward," is thought 
to be applicable only to veins which have a perpendicular, as distinguished from a 
horizontal course. Moreover, if the departure exceeds 45° it is to be reckoned from 
a horizontal line instead of a perpendicular line. This distinction has not, however, 
been recognized by the courts within my knowledge, and probably it cannot be ac- 
cepted. 

The word "perpendicular" is correlative to "horizontal," so that every departure 
from one line is an approach to the other. To stop midway between the lines, and 
say that what has been a " departure from a perpendicular" shall become a " departure 
from a horizontal," would be arbitrary criticism only. There is nothing in the lan- 
guage to support such a distinction. But the better reason is, that the acts of Con- 
gress were clearly intended for fissure veins of which many stand above 45° from a 
perpendicular course. 

It cannot be assumed that Congress intended to prescribe a rule for one class of 
fissures leaving others unprovided for. As those acts were apparently intended for 
all lodes, it is uot for the courts to say that they shall be confined to lodes which have 
a certain position in the earth. 

If I have sufficiently explained the operation of the acts with reference to lodes 
that are nearly flat, I have only to say that the policy of granting the whole of such 
lodes to the discoverer is everywhere condemned. The Spaniards were of that opinion 
and they accordingly graduated the area which could be taken in one location to the 
inclination of the vein. 

Sec. C. "If to one yard perpendicular the inclination be from three fiDger to two 
palms, the same hundred yards shall be allowed for the square (as in the case of the 
vein being perpendicular)." 

Sec. 7. "If to the said perpendicular yard there be an inclination of 2 palms and 3 
fingers, the square shall be of 112^ yards," following which the rule is given in like man- 
ner until the inclination becomes four palms in the yard, for which the rule is stated, 
as follows : " So that if to one perpendicular yard there correspond an inclination of 
four palms, which are equal to a yard, the miner shall be allowed two hundred yards 
on the square on the declivity of the vein, and so on with the rest." (Ordinances of 
New Spain, by Charles Thomson ; London, 1825 ; page 73.) N 

The defect in this rule is that it requires the development of the vein to determine 
the area>of the location. An American must know the boundaries of his claim at the time 
of making 1 he location in order that he may be able to sell it and go in search of another. 
But the ordinances referred to express the .popular idea that a flat vein, or one that is 
almost flat, shall not be given wholly to the first locator, as a coal field is not given to 



PUBLIC LANDS. 271 

him who gets a title to one of the edges of it. I use the word " give" as appropriate 
in this connection, because the price demanded by the government for mineral lauds 
is nominal only. If they are of any value whatever the price paid for them is no meas- 
ure of that value. 

A wise policy to distribute the mineral wealth of the country through many hands and 
as far as possible reserve it to the laboring class of miners was sought in the legislation 
of Congress. In that feature to which I have asked your attention I think that those 
acts fail of their purpose. To correct this error, and others to which I have referred, 
and still others which cannot be enumerated in this paper, I would grant the lands 
absolutely by surface lines with all that they contain, as agricultural lands are granted, 
but not in such quantities as are given to agricultural claimants. 

I assume that the policy of limiting the area to be given to one claimant is firmly 
established, and therefore nothing will be said on that head. There may be different 
opinions as to what the area of a claim shall be but I think that no one will be found 
to say that the mineral lands should be sold in unlimited extent to all persons who 
may apply therefor. In the law as proposed it will not be necessary to make any dis- 
tinction between lode and placer claims. The miner will take all that may be found 
in his location without being required to consider whether it may be called by one 
name or another. This, with nearly all other perplexing questions, will be removed 
from the field of controversy. 

The features of the law to which I have referred as worthy of consideration and 
adoption may be briefly stated as follows : 

1. No location shall exceed ten acres in extent to be taken in any form, so that it 
shall not be less than one hundred feet in width at any point. 

2. A second location shall not be made by the same person within five hundred feet 
of the first. 

3. A location shall be good for all that may be within the lines thereof, and for 
nothing beyond them. 

4. No location shall be made until the discovery of valuable mineral therein, but 
whenever a lode shall be opened and mineral found therein, whether at the outcrop or 
on the dip thereof, the location may be made at any point in the direction of the dip 
so that the first exterior line of such location shall not be more than five hundred feet 
from such discovery. 

5. Except as provided in the act of Congress all matters relating to the manner of 
taking and holding claims to be left to the local legislature. 

6. The proceedings for patent to be substantially the same as under the present law. 

I am, very respectfully, &c, 

MOSES HALLETT. 
Denver, November 8, 1879. 



Testimony of Cornelius Downing Hendren, cattle and sheep raiser, Walsenburg, Colo. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1. 

Walsenburg, Colo., November — , 1879. 

Gentlemen : I have the pleasure to transmit herewith answers to a series of inter- 
rogatories, giving such information as I possess in regard thereto. 

1. Name, Cornelius Downing Hendren ; residence, Walsenburg, Colo ; occupation, 
cattle and sheep raising. 

2. Have lived in this county of Huerfano eleven years, and in this part of the country 
twenty-two years. 

3. Have acquired title to public land of the United States within this State under 
the pre-emption laws. 

4. No other. 

5. No expense in obtaining my patent. 

6. Defects in the practical operation of the land laws exist in numerous instances 
where parties make declaration that it is their intention to live upon and cultivate the 
tract or subdivision which they desire to enter, only for the purpose of releasing for 
a consideration to others of a similar character, thereby preventing actual settlement 
by oona-fide settlers. I would suggest as a remedy that where entry is made under 
the pre-emption and homestead laws, the party making such entry be required to 
establish his identity by credible witnesses, residents of the county wherein the land 
is to be entered, and. who are freeholders in said county ; and further, to execute a 

bond in the sum of $ , equivalent to the government price of the land to be 

entered, made payable to the United States upon failure to occupy and improve as 
prescribed by law. 

7. The public lands in this county, and throughout the entire State, consist of arable. 



272 PUBLIC LANDS. 

inarable, or pastoral and mineral, and, I may add, timber lands ; presenting to the 
view plains, valleys, ridges or divides between the streams flowing from the mountain 
chains, and parks or valleys occupying elevated positions. 

The arable lands are insignificant in area when compared to other portions already 
mentioned, and are chiefly confined to those streams that are capable of furnishing 
sufficient water for irrigation ; among which are the Platte, Arkansas, and Rio Grande. 
There are also numerous streams or rivulets, tributaries, which flow through small but 
fertile valleys. The inarable or pastoral, constituting the greater portion, consists of 
immense plains, elevated plateaus, foot-hills, timber lands chiefly confined to the mount- 
ains, and the parks or elevated valleys. No timber of value is found upon the larger 
streams; only the Cottonwood, and quite limited as to quantity, yet serving the pur- 
pose of fuel. 

Lastly, the mineral portion. According to recent discoveries I would not hesitate in 
saying that the entire niotuntain region in this State partakes of a mineral-bearing 
character. Mines producing silver are being developed within this county, a number 
of which are located on the Spanish peaks. I will not omit to say that coal is found 
in great abundance along the eastern base of the Sierra Madre and among the foot- 
hills. 

8. Of the several classes of land already mentioned, it is my opinion that- the gov- 
ernment can best ascertain the character of such lands by general rule, except elevated 
plateaus and valleys, as are not susceptible of cultivation, viz, plains as pastoral ; 
valleys, agricultural (when susceptible of cultivation) ; foot-hills, if such a term is 
proper, and the mountain regions, as coal, timber, and mineral. 

9. It is my opinion that the present system of land parceling in its ordinary course, 
as applied to this State, has a tendency to work an injury in a majority of cases where 
agricultural land is the consideration, and more particularly those lands lying upon 
the numerous rivulets or smaller streams of the State, as per example : Many are com- 
pelled in confining themselves to subdivisions to include worthless land, for which 
they are compelled to pay as much per acre as that portion which can be cultivated. 
I would suggest that such part of a subdivision being inarable be sold at some nomi- 
nal price to be fixed by appraisement, proof being established of its non-mineral char- 
acter. 

In regard to the surveys of mineral lands, I have not given close attention to them 
or the laws governing the same. It is my opinion, however, that as the mineral re- 
sources of the State are becoming developed new cases must necessarily arise, requir- 
ing the amendment or enactment of laws to meet them. 

In regard to coal lands, I am of the opinion that it would be to the interest of the 
government, as well as to the citizens of this State, to limit the sale of coal land to 
five acres to anyone individual. This method would prevent the monopoly of valua- 
ble coal deposits by capitalists, and be the means of cheapening fuel for the masses. 
This method of course would necessitate a change in the law relative to the surveys 
of this class of land. 

Lastly, pastoral. This subject I shall treat under the head of agriculture. 

10. There are two methods of disposing of such portions of the public lands in the 
West, designated as inarable or arid plains, to actual settlers, either by sale or lease. 
This latter method would prove more remunerative to the general government in de- 
riving a constant revenue from the lease, and can be accomplished without deteriora- 
tion of the land in question. In either case, no quantity less than a tract three miles 
square, sold or leased, would attract purchasers or renters, for the reason that such 
lands could only be used for pastoral purposes, and a less quantity would not justify 
the outlay in seeking water by artesian- well boring. 

In regard to the disposal of other public lands in the West, it depends altogether 
upon the climate and seasons of the country, as circumstances of this nature mate- 
rially alter the case. The land laws should be framed so as to meet them, and render 
impartial justice to all citizens of the United States seeking homes upon the public 
domain. 

AGRICULTURAL. 

1. Climate generally mild ; frosts occur to 6th of June and reappear about 9th of 
September ; snow scarcely ever exceeds 1 foot during the severest portion of the win- 
ter and soon succumbs to the warm rays of the sun, or is carried off by evaporation, 
caused by the prevailing winds. Supply of water for irrigation is very limited dur- 
ing the mouths of July and August each year, yet comparatively little water would 
be needed during summer should irrigation be carried on during winter. This applies 
to the smaller streams. 

2. Rainfall occurs during months of May and June. The rain sometimes descends 
in torrents carrying destruction in its path, yet is of short duration. Rain but seldom 
falls when most needed for irrigation. 

3. But an exceedingly small portion of this section can be cultivated without irri- 






PUBLIC LANDS. 273 

gation, such portions being confined to the base of the mountain where light showers 
of rain frequently fall during summer. 

4. The proportion of land that can be cultivated by irrigation in this county I 
should estimate to be one-hundredth part, provided the water be utilized during the 
winter season. I could give a much nearer estimate by viewing carefully the different 
mountain streams throughout the county, and ascertaining by observation the area of 
such lands now considered as inarable, and upon which the water from the streams 
can be made to flow. 

5. Wheat, corn, oats, barley, rye, as well as nearly all kinds of vegetables, are pro- 
duced in abundance where the land is thoroughly irrigated. 

6. Depends in a great measure upon the nature of the soil, the season, and position 
of the lands. If the soil is composed of light loam and level, or sufficiently so, to 
retain moisture after irrigation, a pipe four inches square will discharge a sufficient 
quantity to irrigate 100 acres of land, but if the land is of a clayey consistency, a 
larger quantity would be required. 

7. The supply of water for irrigation is obtained from the streams flowing from the 
Sierra Madre Mountains. 

8. The fertility of the soil is not diminished by irrigation, but, to the contrary, is 
increased by reason of a great variety of decomposed matter and substance that have 
a tendency to enrich the soil is being constantly conveyed through the canals used 
for irrigation. As an evidence of this assumption, lands that have been cultivated for 
a hundred years or more, in New Mexico, still produce bountiful crops without the 
application of manure. 

9. I estimate that at least one- third of the water in irrigating ditches is exhausted 
by evaporation and absorption ; though this amount of wastage could be materially 
lessened by judicious management. In this portion of the State the Mexicans are 
largely in the majority and are much opposed to a systematic distribution and use of 
water for irrigating, and have no local laws in force governing the same ; but little 
water is returned to the streams in this locality. In the northern portion of the State, 
water for irrigating is used very economically and profitably. 

10. It would be a difficult matter to obtain land bordering upon a stream or con- 
tainiug springs in this county. Nearly all water-fronts and springs are occupied under 
pre-emption and homestead laws, except in very elevated localities where the climate 
is somewhat rigorous. 

11. No conflicts of a very serious nature have occurred under my observation, though 
many crops are lost by those living some distance from the mountains upon the smaller 
streams, the water being to a great extent monopolized by those living nearer head- 
waters. I may here state that this subject about water rights among the farmers of 
Colorado is one of the greatest, and one which should enlist the attention of the gov- 
ernment. Much land can be brought under cultivation with the aid of capital. 

12. About ninety-nine one-hundredths or more. 

13. I do not think it practicable to establish homesteads on pasturage lands, unless 
springs for watering or ponds are upon the tracts, or the homestead laws be changed, 
allowing settlers to enter a tract not to exceed nine square miles. 

14. I do not think it advisable for the government to place these lands in the mar- 
ket for private entry, but if the government should so elect, each purchaser should be 
limited to nine square miles, as before stated. The best policy for the government to 
pursue would be to lease the pasturage lands so as to derive a profitable revenue 
therefrom. 

15. About 40 acres during favorable seasons. This section is equal to the best pas- 
turage lands in the State; grass not " sodded " here as in portions of Kansas and 
Texas. 

16. About 100 head cows. 

17. About four. 

18. I have observed that the grass increases in growth where pastured upon by sheep, 
their droppings enriching the soil. 

19. But few cattle-raisers fence any part of their ranges. Cattle could be confined 
with perfect safety in winter by fencing the range. 

20. The quality of the herds would be materially improved and better beef pro- 
duced by confinement to specific ranges. 

21. Springs and ponds. 

22. Ten. 

23. Increased. 

24. Yes. 

26. Texas herders and desperadoes are frequently employed to destroy sheep by a 
few very avaricious range-claimants, and many shepherds have been reported killed 
by them. 

26. About 12,485 cattle, 61,000 sheep. Cattle roam at will; sheep are heeded in 
flocks of about 1,000 to 3,000 upon restricted range limits. 

27. No other suggestions to offer in regard to the disposition of the public land, but 

18 L C 



274 PUBLIC LANDS. 

in regard to surveys I would suggest that township section corners be designated by- 
some very substantial material, firmly imbedded in the soil so as to prevent their 
easy removal by mischievous and malicious persons. 
28. Not in this immediate vicinity. 

TIMBER. 

1. There is but a small area of valuable timber in near proximity to the mountains ; 
among the foot-hills are found some forests of pine which can be converted into lum- 
ber of a somewhat inferior quality ; spruce, fir, pine, and aspen are found in the more 
elevated regions among the mountains. 

2. No timber planted in this section. 

3. I would suggest the lease of the public timber lands by the government in lim- 
ited tracts so that all settlers may avail themselves of building material under certain 
restrictions, viz : Lessees to give bond to preserve all young trees not exceeding ten 
inches in diameter at the " butt; " the object being to replace timber of mature growth 
utilized by the lessee. The quantity of land leased should not exceed an area of one 
quarter section to that of one entire section according to the density of the growth 
such as may be determined by an officer appointed for that purpose, whose further 
duty would be to appoint three disinterested persons of experience as commissioners 
to appraise the land to be leased ; after which the amount per centum of its appraised 
value may be fixed by the proper constituted authority, the first year's rent to be paid 
in advance. 

4. Yes, I deem such a course to be very necessary. 

5. No second growth (in the true acceptation of that term) of any forest timber. 
Young trees make their appearance in isolated places; of course the aspen and cotton- 
wood produce second growth, but such timber is not used for building purposes. 

G. There are many theories as to the origin of forest fires, attributing them to spon- 
taneous combustion of dried fungus attached to very dry trees, also the lightning ; 
this latter cause I have no doubt is sometimes the cause, but fires more frequently 
occur through the carelessness of " campers " and malicious persons. I would suggest 
as a remedy that a heavy fine be imposed upon any person who in any manner sets fire 
to forests ; one half of such fine to be paid to the informer. 

7. No receut occurrences of depredations upon the public timber. Some waste oc- 
curs, cannot say to what extent. 

8. The local custom here is to assume ownership of felled timber by the parties who 
fell the same. 

9. Most undoubtedly so. 

In conclusion will say that I regret very much in not being able to return to the 
honorable Commission strictly accurate answers to all the interrogatories. The reason 
of such inability exists in the fact that in so short a space of time it is impossible to 
obtain the data so as to enter more fully into the details necessary to a complete eluci- 
dation of the subject-matter here treated of. It would afford me much pleasure to 
render the Commission further service when necessary. 

I remain, gentlemen, with the highest consideration, 

C. D. HENDREN. 






Testimony of Judge John J. Henry, Leadville, Colo. 

Leadville, Colo., August 25, 1879. 

Judge John J. Henry, register land office Leadville, Colo., made the following state- 
ment : 

Well, I do simply say that while I do not know what recommendations or altera- 
tions to make in the management of the Land Office at Washington, I will say this : 
that there is a great deal of delay occasioned there, and especially in the issue of 
patents. We send the final entry papers in agricultural and mineral cases, and some- 
times it is as much as two years before we ever hear from them again — before there is 
any patent issued on them. 

In my judgment, cancellation shohld be done in the local offices. My reason for this 
is the saving of time. Another thing I would state in this connection is in regard to 
" hearings." We have in this office the similar matter of lands being returned as 
mineral lands. The claimant comes up and claims that it is agricultural land, and 
says there is not any mineral on it. The laws require us to call a hearing to determine 
the character of the land, and we take sometimes 20 legal-cap pages of evidence as to 
the mineral character of this ground. Then I have to send all this testimony to Wash- 
ington, where it is probably stuck in a pigeon-hole and remains six months or a year 
before they act upon the case. I think we ought to be allowed here in all cases when 



PUBLIC LANDS. 275 

they are of that kind, when we are satisfied that it is a non- mineral section, to permit 
the applicant to enter it right here himself. 

In regard to abandoned homesteads, I think it would be better that the local officers 
should be allowed to act in the matter without sending to Washington for authority, 
just as I said in regard to the " hearings." I think when the land officers here are sat- 
isfied, for instance, that this land, although returned as mineral, is non-mineral — when 
we are satisfied it is non-mineral by the evidence and proof — then we ought to allow 
the applicant to make claim to it as agricultural land. I know the receiver will bear 
me out in it. There are some cases here where the application has been made, the 
man enters agricultural land or enters mineral as agricultural land, we take the proof, 
and send them up to Washington, and before we have heard from Washington — before 
they consider the case — the thirty months in which the man has to make his final entry 
have expired. That was the case of James M. Coles ; the thirty months have expireds 
and we have not heard from Washington. 

I have the same suggestions to make that I made in my written paper which I sent 
to you at Denver, and which ycu have not yet received ; that is, that the United States 
deputy surveyors return too much land as mineral, giving the agricultural claimants 
trouble to prove it non-mineral. We have in this office 100 cases of that kind, where 
the applicant enters the land as agricultural and the return is mineral. We advertise 
for a ", hearing," and in no single case has there been a claim that the land is mineral, 
the evidence all being one-sided. All this trouble arose because the deputy surveyor 
returned it as mineral and it has to be disproved, the burden of proof resting upon 
the agricultural claimant. 

I think that the notices required to be posted up and published by the applicant for 
pre-emption payment or homestead final proof is, in my judgment, the greatest hum- 
bug connected with the land system. I do not see any reason at all for the announce- 
ment and notification of the land. I do not know any good it does or any use it is ? 
and if you or anybody else can tell me, I am sure I would like to know. I do not 
know what the object or intention of the law was. In the first place this office is on 
one side of the district and the agricultural district lies away down below here, below 
Fairplay and South Park, and most of our agricultural claims come from that quar- 
ter. Now, if a claimant comes up here with his two witnesses, as the law requires, it 
will take him three or four days, and to bring the two witnesses it will cost him $100^ 
that is if he comes on the stage, pays hotel bills, and fees the witnesses. Six^nonths 
or a year later he wants to prove up on the land he has filed on ; he has not seen this 
land, does not know anything about it ; they tell him he cannot enter this land without 
having advertised his intention to " prove up " in the newspapers for thirty days. This 
costs him $5, and at the end of that time he has to bring his witnesses back here, mak- 
ing an additional expense. In my judgment that ought to be repealed. I think the 
papers of the entry system of the land office might be simplified and less papers used, 
though I am not prepared to state just how. 

Question. What is the general character of the lands in your district ? — Answer. 
There is very little of what you might properly call agricultural land in our district. 
It is only along the rivers and in the valleys that you can raise grain and vegetables. 

Q. How large a part of the State does your district cover ? — A. Well, I suppose about 
one-sixth of the whole State. 

Q. And what proportion of that do you suppose to be agricultural land ? — A. I should 
say not more than one-twentieth of it. Probably more than one-twentieth would pro- 
duce hay and grass for cattle, but one-twentieth would cover all that you could raise 
cereals upon. 

Q. How much of that land has already been taken up under the United States laws 
in your district ? — A. In our district probably one-third of it has been entered as agri- 
cultural land. 

Q. You mean that one-third of the one-twentieth has been entered as agricultural land 
and that two-thirds is still left ? — A. Yes. 

Q. How has it been with the water? Has it all been pre-empted under existing 
laws or local customs? — A. It is in some instances. A man cuts a ditch to carry 
water to his land. He has, I believe, by law exclusive right to that water. No man 
can interfere with it ; that is, if it runs through government land. 

Q. By State law ?— A. No ; by United States law. 

Q. What law, for instance? — A. I do not know. I cannot refer you to the law, but 
my understanding is that the man who cuts the ditch and brings the water to his 
land has exclusive right to it. 

Q. What proportion of the lands in this district are timber lands? — A. Well, I 
cannot say. I am not very well prepared to answer that question, because I have not 
been all over the district to see, and the timber land is not platted on our maps. 
The only way we have to learn is by occular proof. 

Q. Are there any considerable bodies ? — A. Yes ; there are some considerable bodies 
of timber in the northern belt of the district. On the South Park Ridge there are 
the most extensive and heavy bodies of timber I know of. 



276 PUBLIC LANDS. 

Q. Any timber platted in that district ? — A. No, sir. You can see that there has 
been heavy bodies of timber here also. 

Q. How long since ? — A. That was a year and a half ago. About a year and a half 
ago it was surrounded by heavy bodies of timber. 

Q. What became of that timber? — A. It was cut off and sawed up into lumber with 
which to build the city. 

Q. Part of it, yon think, was used in that way ? — A. Yes; part of it. I suppose that 
all the fuel that has been used here was also taken off. 

Q. And the timber for timbering mines?— A. Yes, sir. 

Q. Has that been cut off without payment to the government? — A. Yes, sir. I 
never heard of the government receivingone dollar for the timber cut from the land 
in this district. 

Q. Is there any local custom regarding the cutting of timber whereby the cutting 
down of the tree by the party entitles him to the ownership of it ? — A. There may be 
such a custom or rule, but I have no knowledge of it. 

Q. Do you know anything about the destruction of the forest by fires, and how these 
fires are set ? — A. No, sir. I do know that fires run over the timber land here and 
destroy it in a great measure, but I do not know how they are set. 

Q. You have no knowledge of the comparative proportion of destruction by fire and 
use by man ? — A. No. I do not know. 

Q. Within your official observation, are not the forests being constantly destroyed 
without compensation or use to the government ?— A. Yes, sir. They are being'de- 
stroyed very fast, but, as I said before, I do not know of the government ever receiv- 
ing §1 for the timber. 

Q. Is that destruction of timber largely owing to the wants of the people?— A. Yes, 
sir ; it is largely owing to the wants of the people. 

Q. At the rate of destruction now going on in the vicinity of Leadville, what will 
be the condition of the timber a few years hence ?— A. It would depend very much on 
the growth of the town and the demand for timber. 

Q. But at the rate of destruction now going on ? — A. Well, I think there would be 
very little good available timber here in three years' time with the present destruction 
of timber. I am of the opinion that it would be better for the government to offer 
these lands at public sale, so that they may be subject to private cash entry, because 
then the applicants, usually mill men, builders, &c, would buy them. They are 
willing to buy them and pay for them. But they cannot do it now without going 
through the pre-emption and homestead entry. They are bound to have the timber, 
and are willing to pay for it ; but if they cannot buy it, they will steal it. 

Q. Ought there not be some regulation for the preservation of timber? — A. I think 
it would be largely to the interest of the United States if the person who purchases 
the timber was not allowed to cut it all off at once. It would be very good to preserve 
the timber. It has been shown by many writers that timber is necessary in all coun- 
tries for the production of rain and other reasons. I think it would be well to reserve 
some of these lands for the growth of timber. There are some sterile lands here which. 
I think, if the timber was cut off, would never grow up again. I think there would 
be no young timber to take the place of the original growth. 

Q. Speaking of throwing these timber lands open to private entry, would you impose 
any limitation upon the entry? — A. I would be in favor, as it were, of letting down 
the bars and permitting every man to come in and buy government land and pay for 
it just as much as he wants. I would not suggest such a thing in a newly settled 
district, but in an old settled district, where the best and most desirable lands have 
been taken up. When there is no chance for speculators to speculate on it, I would 
say throw it open to every person. 

Q. Don't a man have to commit perjury to get timber land now ? — A. No, he does 
not. To acquire a portion of timber land he can use his pre-emption or homestead 
right, but after these have been used he cannot acquire more without perjuriug him- 
self. 

Q. Did you ever know of an instance of a patent being issued to a pre-emption 
claimant where the man had simply built a hut and had not cultivated anything ? — 
A. I have known orders issued upon agricultural claims where there was no real ag- 
riculture, in fact no plowing done. 

Q. Was it not sworn to in the papers? — A. No, I think not. I think the question 
is asked him " How much of this land have you plowed or cultivated ? " and if he says 
none, as they very often do, I do not think a patent would be refused him on that 
ground. The idea is, as I understand it, that if he takes it up for a home, settles 
on it, builds a house on it and lives there, that ho has met the requirements of the 
pre-emption and homestead law. We often grant a patent if the applicant has not 
cultivated the soil, because the season is too short or the altitude too high. It 
would be absurd to compel a man to plow when he could not raise anything. 

Q. So that any person will and can take up first a pre-emption, then a homestead, 
making 320 acros of timber land, by simply erecting his house there and swearing 



PUBLIC LANDS. 277 

that be intends to make that his home? — A. Yes, sir; if he has made it his home, 
as soon as he made his filing. 

Q. For how long a time ? A. From the day of filing ; from the day he " proves up ". 

Q How long after that ? — A. They generally allow him to make entry three months 
after filing. 

Q. That would make 320 acres of timber land that a person could acquire rightfully 
in that form ; then cannot he locate a timber- culture entry upon it ? — A. Well, I do not 
know really what the timber- culture law is. We have never had an instance of it in 
this office. I do not feel prepared to say. I am not posted upon the timber-culture law, 
because we made no use of it in this district since I have been here. 

Q. Cannot a man purchase soldiers' scrip and locate additional land with that ? — A. 
Yes, sir. 

Q. What were you going to say about the South Park question ?— A. That the South 
Park was a question of altitude. 

Q. What is the altitude?— A. The altitude is 9,000 or 10,000 feet. And while it is 
returned as agricultural land, and in reality is agricultural land, there is not a bit of 
it that is cultivated. A man may have a garden behind his house, with a little patch 
of potatoes, but that is all. 

Q. Is there no coal in the South Park? — A. Yes, sir ; there is said to be one large 
body of coal about 10 or 12 miles from Fairplay, near Hamilton or Como. 

Q. Has there been an entry made of it as coal land ? — A. Yes, sir ; it has been entered 
by the South Park Coal Company as coal land. In the last year we have had several 
coal filings, but only one coal entry. I have never known persons to be benefited by 
an entry of others. But then I cannot say positively. A man comes up and swears, 
and his two witnesses swear with him, that he has been on the land. I cannot ques- 
tion it. 

Q. How much additional soldiers' homestead scrip has been located in this district ? — 
A. Not more than one piece. 

Q. What character of land ? — A. Agricultural land, so called. 

Q. What was it as a matter of fact ? — A. It was grazing land. 

Q. As affecting the public interests, have you any idea upon the use of this scrip for 
the purchase of public land ? — A. Yes ; I should abolish all kinds of scrip. 

Q. Why? — A. Beca/use of the trouble and difficulty there is in locating land with 
scrip. Now, these soldiers' warrants, and all kinds of scrip, a great deal of it, is coun- 
terfeit and a great deal of the transfers are forgeries, and no man is really safe in using 
the scrip until it is approved by the authorities in Washington. 

Q. Do they ever undertake to use it till it is approved in Washington ? — A. Yes. 

Q. Soldiers' scrip ? — A. The Supreme Court scrip has not all been approved by the 
Commissioner. Some of it has. 

Q. It ought to be issued by him, ought it not ? — A. I do not know how it is issued, 
or what it was issued for. The most we have handled has Caleb Cushing's name on it, 
showing that it was signed by him. 

Q. How much of your district could be classed as pastoral land, and what would be 
your description of pastoral lands ? — A. I have made no calculation, but should say 
that one-half of the land of the district is pastoral land. From this land grass and 
hay can be taken. 

Q. And is not capable of producing cereals ? — A. Yes, sir. 

Q. For what purpose are these pastoral lands adapted, meaning by pastoral lands 
lands not capable of raising cereals ?— A. For the purpose of raising cattle, feeding 
stock, cutting grass for hay. There is, however, a great deal that cannot be used for 
any purpose, being barren, hillsides, &c. 

Q. Then these desirable pastoral lands, are the present agricultural land laws adapted 
to their sale or disposition ? — A. My answer is no. 

Q. Why not ? — A. Because the purchaser cannot obtain enough of them, and he must 
have a large amount to make the holding of them profitable for grazing. 

Q. In your judgment how much of this land in your district would be required for 
the raising of one head of beef for market ? — A. I should say, on a rough estimate, 5 
acres. 

[Note. — The average altitude of this district is 8,000 feet.] 

Q. Taking your district as a whole, the barren land, the hillside, &c, what would 
be your estimate of the number of acres for the raising of one head of beef ? — A. Well, 
I should change my estimate, and say it would take at least 8 acres to feed a bullock, 
because there are a great many side hills that do not produce anything. 

Q. Now, don't the lands at an average altitude in your district produce much better 
grass for grazing purposes than the lands down in the lower altitudes ? — A. Yes, sir ; I 
think it does. 

Q. Your idea of disposing of this land would be what — this pasture land ? — A. My 
idea would be to render them subject to private entry. 

Q. Without limitation? — A. Well, yes; I should say without limitation. 



278 PUBLIC LANDS. 

Q. Suppose, then, one man walked in and bought it all?— A. Well, it would be all 
the better for the country if he would. 

Q. Why? — A. Well, for one reason, as soon as he purchased it it would become tax- 
able and bring a revenue to the State. 

Q. Would you make the revenue so much per head for the beef ? — A. Put it on the 
land, the stock, the improvements — everything that was put on the land. It would 
be a revenue to the State, it would render the land productive, and it would cause set- 
tlements to be made all over it, whereas now it pays no tax. 

Q. If one man bought it all, how many settlements would there be ? — A. He would 
sell it or lease it from time to time. Well, probably it is saying too much to allow a 
man to buy unlimitedly. You might limit him to 2,000 or 3,000 acres. I do not think 
any man wants a less amount for feeding cattle. 

Q. Excluding all agricultural land — that is, land which can raise cereals — excluding 
the timber lands and mineral lands, and taking the plains, what do you think it could 
be sold for per acre in this district ? — A. I believe it could be sold for $1 per acre ; that 
is, at an average of $1 per acre. 

Q. That is the pastoral lands? — A. Yes, the pastoral lands; they would sell for an 
average of $1 per acre. 

Q. What proportion of unsurveyed land have you in this district? — A. I should 
think one-half of the land in this district is unsurveyed. 

Q. Has there been any trouble about the monuments and corners or anything of that 
kind ? Are the monuments found readily ? — A. Well, I cannot very well explain that, 
because I have confined myself since I have been in this office almost exclusively to 
the office. I have traveled over the district very little except by public conveyance. 
I have not walked over the public land since I have been here. I have never seen a 
monument or corner post marking a section or township. I have people come into 
the office here and complain that they could not find the corners. The posts have 
been knocked down, dug up, or moved, and they did not know where the corners were. 
That is a very general complaint. 

Q. Do they rot down? — A. I suppose the wooden stakes would rot down in time. I 
do not know just how long, but probably it would take a stake five years to rot off. 

Q. Is there much mineral land in your district ? — A. Yes, sir ; a great deal. 

Q. Are the present mineral laws, in your opinion, applicable to the disposal of those 
lands ? — A. Yes, they are applicable to their disposal ; but I think there is a great deal 
more formality required by law than is necessary — more red tape. 

Q. That is the administration of the law you refer to ? — A. Yes, sir. 

Q. I am speaking of the law itself .—A. Those who administer the law administer it 
as it is and require nothing more than the law requires. 

Q. Well, in your opinion, is the present law adapted to the perfecting of mineral 
titles without inducing conflicts ? — A. No, I think it is not. 

Q. Why not ?— A. I can give you my views, gentlemen, but I would rather you reserved 
this question to be put to the receiver, as he is better posted than I am. 

Q. What changes can you suggest in the present mineral laws of the United States ? — 
A. The law requires, for instance, that a shaft shall be sunk in the middle of the claim, 
in the center, and that there shall be no more than 150 feet on each side of the shaft. 
I do not see any good reason for that. If that man owns that claim, I think he ought 
to be allowed to sink his shaft on any part of that claim he thinks proper. Then, 
further, the law requires that the applicant or claimant himself shall make certain 
proofs. Well, now, when he comes to make his entry, to make these proofs, the appli- 
cant is in New York, Saint Louis, Washington, or some other place. So I think it 
would be just as well that disinterested witnesses should make the proof as the appli- 
cant, and I think it would be a great deal more feasible and proper to have all the 
business in regard to the public lands done in the local land office by the United States 
officers, and that the registration of claims in the first instance should be done by the 
district land office in that district. All records of location and discoveries of mines 
or placer ground should be recorded in the records of the office of the county recorder. 
Now when a man draws up a title he comes to the county recorder's office and has 
recorded the location and entry. Sometimes that office is as far away as the United 
States land office; but if the law was amended, for long distances or rich mining 
camps a deputy register could be appointed, who could go long distances. 

I would like" to make another suggestion in regard to taking proof. Where there 
are three or four or half a dozen witnesses I think it would be well if either the reg- 
ister or receiver could go out of his office and take the proof, which is not allowed 
now. For instance, we have a great deal of business from our old county from which 
we moved the office. To make homestead or pre-emption proof it is necessary that 
three persons come to this office. Some! imes one of these persons or the applicant him- 
self may be a cripple, or sick and unable to travel. 1 think it would be well to 
allow tlib register or receiver to go over to Fairplay and lake this testimony of these 
parties. It would save them a great deal of expense, and he could go there, charging 
them a very trilling amount for the expense of going there and coining back; while 



PUBLIC LANDS. 279 

they have to bring three parties over here and take them back, pay witnesses' fees, 
hotel expenses, &c. 

Q. You think the present system of taking proof works hard for the person making 
the proof ? — A. Yes, sir, in a great many instances. Well, I do say that I deem it 
advisable to have all these records of discoveries made in the land office instead of in 
the county recorder's office, because there is no check upon the recorder's office ; dates 
maybe altered or papers destroyed. There is no supervision over the recorder's office, 
and there is over the land office, as duplicates of all proceedings of the land office are 
made in Washington, so that it would be impossible to destroy the records or alter 
them. 

Q. How long have you been here in Leadville ? — A. We came here the 10th July. 

Q. About six weeks ago ? — A. Yes, sir. 

Q. Has there been any attempt to set fire to the court-house ? — A. I do not know 
whether there has been any attempt to set fire to it, but I know it has been on fire, 
and was materially damaged. 

Q. Suppose that the contents had been entirely destroyed in that fire, what evidence 
would remain of the original location of mining claims in this district ? — A. Nothing 
but the certificate of location in the possession of the locator. 

Q. There would be no official record left anywhere ? — A. No, sir ; certainly not. 

Q. The only evidence of original location then left would have been the certificate 
given to the miner or mine locator, and which would have been in the possession of 
the party himself ? — A. Yes, sir. 

Q. So there would be no check upon the parties altering that certificate except the 
honesty of the party? — A. None that I know of. 

Q. I know that under the statutes of all the Western States and Territories, except 
Colorado, which I do not know so much about, a man on unsurveyed government land 
shall be protected on his 160 acres, and if any person trespasses he recovers damages 
under the laws of that State, and the courts recognize his absolute right and title to 
the 160 acres of land. Is that so in Colorado ? — A. That is the case. 

Q. Has not that a tendency to prevent the people from acquiring title under the 
United States laws ? Do you know of such a case where he is protected by the State 
so that he does not want to get a title from the United States ? — A. It has not, because 
the United States laws require the settler to make his filing in the United States land 
office within three months after the plot of official survey is filed therein ; otherwise 
the settler before survey is liable to have his land filed on by other claimants and he 
thus lose all the right which prior possession gives. 

Q. In case an adverse claim is filed against a mineral application, should the litiga- 
tion thereon continue in the United States land office, or should the jurisdiction of 
the United States office be restricted and the litigation be transferred to the State 
courts ? — A. I think the litigation should be continued in the United States land office ; 
it would be both simpler and cheaper, and, as I said before, the land offices know more 
about it than any other office in which the case has never been before. 

Q. How about the delay ? — A. There would be a great deal less delay if it was settled 
in the local land office. 

Q. And the expense ? — A. It would be a great saving of expense. 

Q. If the United States maintained exclusive jurisdiction generally in the issuing 
of patents, would not the tendency be to foster litigation ? — A. I think so. 



Testimony of S. W. Rill, mining engineer, Leadville, Colo., relative to mineral laws. 

Public Land Commission, 

Leadville, Colo., August 27, 1879. 

S.W.Hill: 

Reside at Houghton, Michigan. Have had more than thirty years' experience as a 
mining engineer in the Lake Superior region ; to be more particular, I was with Dr. 
Houghton in 1844-45, and in the United otates surveys of Foster & Whitney, as well 
as in that of Jackson. I have been a practical miner — a director, that is, of mining 
enterprises — and have built up a number of mines in the Lake Superior region. 

There are no defects in the operation and administration of the United States laws 
which would attach to our district, the Lake Superior region, but the land there is not 
under the same conditions as this here in Colorado ; the old system of public land sur- 
veys covered our Michigan country. The government sold that land after the geolog- 
ical survey of Foster & Whitney by the legal subdivisions of the public surveys. 
There has been no litigation except in two instances. One of these was a case of 
unintentional trespass ; it was simply a case where the tracts of land claimed by two 
parties overlapped ; in consequence of this overlapping a few fathoms of earth were 



280 PUBLIC LANDS. 

excavated by one of the two parties in what was determined to be the other's tract 
I was then directing mining operations in the neighborhood and was called in as an 
expert to determine the damage sustained. Taking another engineer with me, we 
made the examination together and decided what amount of mineral had been taken 
out. Upon our report a check was immediately drawn at the office of the trespassing 
party for the full amount of loss sustained, and the other party was duly indemnified. 

In the other instance mentioned I was called in as a witness. I testified in regard 
to the position of four posts serving as monuments of the corners of a certain tract. 
Three of the posts were wooden, and sunk in the earth; the fourth of iron, set in a 
hole drilled in rock. By the public surveys it was determined that a post on one cor- 
ner of this tract stood out of line. An expert in the employ of the party owning this 
tract had determined that an adjoining party was trespassing within the true lines of 
the tract in question. A suit was thereupon commenced to recover damages. I was 
summoned, and came from the other shore of Lake Superior to give my testimony. I 
took the judge and jury and showed them the actual position of the corner posts. A 
verdict was at once given in favor of the plaintiff. The trespass was paid for, and the 
litigation was thus ended. 

In the interpretation and administration of the present United States laws as to lode 
claims I may say, in general, that I think little difficulty would arise so long as the 
lodes were nearly perpendicular in position ; but when the deposits are nearly hori- 
zontal and in the nature of a stratum or floor, as here in Leadville, the application of 
laws framed to cover clearly defined vein claims will produce injustice in certain cases. 

I can say unreservedly in regard to the present official practice of filing surveys of 
lode claims which overlap on the surface that I do not approve of it. I believe that 
it certainly works injustice. If it were possible to establish positively and with little 
trouble or expense the true position of a lode, and to distinguish it from other lodes r 
this overlapping of claims might not be so objectionable ; but under existing condi- 
tions I certainly do disapprove of it. 

The top or apex of a lode is the highest point of its outcrop in rock in place. It is 
often the case that a man does not own the true or proper apex of his lode when he 
makes his location and sinks his shaft. After his work is far advanced he may dis- 
cover to his cost that the lode which he thought to be his is really the property of 
some other man who has located above his claim. In the early workings of veins or 
lodes it is certain, therefore, that the apex and the course cannot always be deter- 
mined. 

The intended rights of a discoverer are assuredly not defined or properly protected 
by the locating of a claim under the existing laws. In my opinion the laws as they 
stood in 1865 and 1866 were much better than they are at present. 

Litigation and injustice have often grown out of the impossibility of determining 
with certainty the top or apex, the course, and the angle of the dip, within my own 
experience and knowledge. I have frequently been called upon to be present as a 
witness in the trial of cases involving this very condition of things. By the wording 
of the laws a man is dragged into a lawsuit, and fails to obtain protection under the 
same laws for his just rights when his case is adjudicated in court. 

I have not known of a contest arising from two parties locating different seams from 
the same outcrop ; but it might very possibly occur for all that ; for my experience in 
this region can scarcely be termed a varied one. I have been looking up quartzite 
within the past few weeks, and have often found it ranging over 300 feet in width. 
It was impossible to tell whereabouts within these deposits the gold or silver-bearing 
quartz might lie. Two discoverers might both locate with perfect honesty of inten- 
tion on one side of the ledge or rock in place. The result of such locations would 
almost certainly be litigation ; for a claim with a width of 300 feet would not cover 
the outcrop. 

It is sometimes the case that outcrops of narrow lodes so deviate from a straight line 
as to pass beyond the side lines of claims. The lodes are often extremely crooked. 
Fissure veins rarely run in a straight line. Thus the general course of a lode will vary 
often within every few hundred feet. Every prospector should study vein phenomena 
and make his locations with care and judgment. There is no reason why a man should 
have any right to a lode after it passes beyond the side lines of his claim. The harm 
in granting the right to a man to follow the course of his lode beyond the side lines 
of his claim is that it at once causes litigation. Two cases of litigation, on this ac- 
count, are now in progress here in Leadville. In one instance the original discoverer 
made his location on the idea that he had found the highest outcrop and determined 
the course of his vein. It turns out that his lode runs outside of his side line and into 
the ground of the other party to the suit, who traces the vein down from an outcrop- 
ping apex above the side line of the first locator. In the other ease the outcrop comes 
out below the side line of the first locator, whose ownership of the lode is accordingly 
brought in question. These continual disputes interrupt tho legitimate business of 
mining. 

The deposits here in Leadville are not fissure veins, but what I call contact veins 



PUBLIC LANDS. 281 

These veins partake of the character of true veins and of simple horizontal strata or de- 
posits. It is evident that they are not to be classed with placer deposits but with vein 
deposits, although differing materially from true fissure veins. 

The practice under the law of permitting lode locatiocs of alleged lodes on non-min- 
eral ground works to the disadvantage of the discoveries of true lodes. Consider, for 
instance, a case in which a man has discovered a true lode. Straightway another man 
sinks a shaft on adjoining property and claims to have discovered mineral in ground 
lying above the first man's claim. In almost all cases following the direct and legiti- 
mate application of the mining laws, the first man is the true discoverer and the sec- 
ond is a jumper. Yet in the case of the iron mine, Judge Miller's charge to the jury 
certainly conveyed the impression that it was not the business of the United States 
Land Department to ascertain whether the second locator had mineral on his claim or 
not. Simply paying $5 an acre entitles a locator to obtain a claim, under this ruling, 
and it is manifest that this practice must work injury to the man who is pursuing a 
legitimate business of prospecting for true lodes. I have had considerable acquaint- 
ance and intercourse with mining men in all sections of the country, and have found 
those men, who are engaged in the legitimate business of prospecting and exploring, 
to be, as a rule, useful and honest citizens. They may sometimes fall by chance into 
the hands of bad, designing men, and may lend themselves to evil and illegitimate 
purposes, but, unless misguided, they are disposed to act fairly. 

In the case supposed, where B, a subsequent locator, makes a location outside the 
side lines of the first locator, A's tract, parallel to it and over the dip of A's lode but 
upon barren ground, it would almost certainly follow that A will be put to the cost 
and inconvenience of an expensive litigation. Such a case is occurring weekly in this 
locality (Leadville). The allowance of such a location as B makes permits a man to 
put another to great inconvenience and may even constrain the first locator to post- 
pone the development of his claim. In traveling over this region the question occurs 
to me, in what way we can best shape and perfect the laws so that capital may be 
stimulated to lend itself to the development of our mineral resources, and may be pro- 
tected in its investment and at the same time the rights of the miner may be secured. 
This question is the main one, the general one, with which we have to deal and upon 
its satisfactory solution depends the future prosperity of pur mineral interests. 

As the case stands at present, a large majority of the discoverers of rich veins or 
their assigns are often burdened with costly litigation to defend their rights from sub- 
sequent locators in their immediate neighborhood. In this way the investment of 
capital is directly discouraged and the interests of an industrious and fortunate miner 
are put in peril. The legal attack in such cases is commonly directed to the portion 
of the dip of the lode which has passed beyond the exterior lines of the surface tract. 

It might be possible to retain in the United States mineral laws a provision by which 
locators can follow the dip of their claims outside their side lines, and yet avoid litiga- 
tion, if the general course of veins were perpendicular or nearly so. But as the law 
must be framed to cover horizontal lodes as well as lodes that dip at a slight angle, 
in my opinion such a provision cannot be retained with good results. 

I think that all mining district laws, customs, and records can advantageously bo 
abolished as to future locations, and that the initiation of record title should be placed 
exclusively with the United States land officers. I know that many associations of 
miners pass resolutions and make regulations of whose purport they &re ignorant, and 
which often are detrimental to their true interests. In many cases, too, these regu- 
lations are at variance with the decisions of the courts and the rulings of the General 
Land Office. Even if these district laws did not conflict with the decisions of the 
courts, I can see no propriety in retaining them. The officers detailed to conduct this 
business for the United States will receive their instructions from the Land Office and 
will be guided by its rulings. The abolition of these local regulations would simplify 
the interpretation of the law, and would do away with these objectionable miners' 
meetings. In some of our Western States and Territories there are instances where a 
majority of the members of the legislature have passed statutes which were found to 
conflict with the laws of the United States. When inexperienced legislators meet, 
whether in a regular State assembly or in a rude mining camp, they are almost certain 
to commit mistakes from local prejudices and ignorance of the federal laws and the 
rulings of the courts. 

Believing that the practice of following the dip beyond the side line of a claim is in- 
compatible with satisfactory administration, I can only say that no method of location 
seems satisfactory to me except that of confining all mineral-land grants within cer- 
tain lines, which should cut off all deposits perpendicularly, and allow to a locator only 
the land immediately under his surface tract within the boundary lines and all de- 
posits therein. I have had thirty years' experience with the operation of the mining- 
laws of this country, and can honestly say that I believe the business of mining would 
have been practically abandoned, in view of the continual annoyances and litigations 
growing out of legal complications, had not the magnitude of the great silver deposits 
induced men to endure the incident legal squabbles and other inconveniences. If no 



282 PUBLIC LANDS. 

changes are made by the time we arrive at the point when ores of low grades must 
be handled, the country wJJl be ruined. I can conceive of no remedy for this impend- 
ing condition of things except a radical change. In some districts in certain States it 
is true, no doubt, that this change is not needed, but it is evident that the change can 
work to the disadvantage of no one in any portion of the country. 

In regard to the proposed requirement that a man should prove the discovery of 
metal before he can acquire title to a claim from the government, I would emphasize 
the point that under the present law a man can come forward and take up a certain 
number of acres of ground without ever having put a spade in the earth. I think, 
decidedly, that it is best to require that a deposit of mineral should be discovered be- 
fore the land should be sold. It was supposed that this requirement was necessary 
before the ruling of Judge Miller in his charge to the jury in the iron-mine case re- 
cently published. He ruled that it was not necessary, under the present statutes, for 
a man to prove to the Land Department that he had struck mineral. He was only re- 
quired to prove that he had expended $500 in improvements in order to purchase the 
lands from the Land Department at the legal price of $5 per acre. 

It seems to me that the true course for the government to follow is to dispose of the 
lands to locators by requiring them to takeout a patent within a reasonable time. 
Under the present law a locator may take all the valuable mineral from a claim, and 
still pay nothing to the government for the land. I find here in Leadville, for in- 
stance, applications for only about 300 patents. Now, I have traveled about this neigh- 
borhood quite extensively, and should judge that there are certainly 3,000 claims lo- 
cated about here. Now, a large amount of mineral is taken out by these locators daily 
and sent to the smelting-houses for which the government, which really owns the land, 
gets absolutely no return. When the claim is exhausted of mineral, the land is prac- 
tically worthless; the locator throws up his claim, and the land reverts to the posses- 
sion of the government after it has been made unsalable. 

There certainly should be some limit as to a possessory title, and my own view would 
be to give only a short time to locators during which they might acquire a title by 
purchase of a patent from the government. I am disposed to make any reasonable 
allowance to an honest locator, and to aid him in every feasible way, if he is poor and 
needs help. I have a sincere sympathy with the men who are exploring and opening 
up a new country. I feel disposed to be exceedingly liberal toward them. They are 
obliged to pay the expense of surveying their claims and have other considerable ex- 
penses incident to developing them. Still they should be obliged to acquire their titles 
within a reasonable time, which, in my opinion, should not be longer than eighteen 
months, if indeed a year would not be an ample allowance. The government has 
limited the possessory title to placer claims to the period of one year, and it seems to 
me that the law for one variety of claims might be extended to cover the other with 
perfect propriety. What we want is simply a sufficient time given to the miner whose 
intentions are honest in which to perfect his title. 

I have been from one end of the State to the other during the past year, and have 
noticed how the claims are worked, and the question occurs to me, how much money 
is the government going to get from its mineral lands? The mineral is fast going 
away, and the jumper is going away also. What will the government get ? Nothing, 
absolutely nothing. 

It is necessary for us here in Leadville to levy taxes in order to carry on our local 
governmnent ortopay our proportion toward the support of the State government. Now, 
if the national government by its present course in relation to the allowance of pos- 
sessory titles deprives us of the opportunity of levying taxes on property, it deprives 
us of our proper resources for carrying on our local and State government. As long as 
our locators are allowed to hold their possessory titles without purchase, they are non- 
property owners and cannot be taxed for their claims. When they acquire title by 
purchase, they must contribute their quota for the support of the municipal and State 
governments. 

By our present laws we are encouraging the production of a race of perjurers and 
plunderers. This condition of things cannot long exist in this country or anywhere. 
The remedy for this state of things I should say briefly to be, first, that the surface 
boundary lines of a claim should limit also all deposits within that claim ; and sec- 
ondly, that all claims should be paid for within a reasonable time. 

When the act of 1872 was passed by Congress our land system in Michigan was 
practically perfected and closed up. It was at once ]>erceived that this new law was 
applicable to discoveries of mineral in Michigan as well as in tho neighboring States. 
In December, during the holidays, I went on to Washington aud presented the sub- 
ject to the attention of the members of both Houses. I showed them that the bulk 
of our lands were already disposed of under the old system, and that the introduction 
of the new ono would only cause unnecessary complications. We had a bill intro- 
duced in both Houses excepting Michigan, Wisconsin, and Minuesota from the opera- 
tion of the new law, the act of 1872, and leaving the law precisely as it was before 
the passage of that act. There was not a Western man iu, either House who objected 



PUBLIC LANDS. 283 

to our bill. .Stewart, of Nevada, to whom I presented the case, saw the point at once 
and made me sit down and draft the bill. I presented the bill as drawn to Sargent, 
and he indorsed it immediately. I went to our own SeDators and they were thunder- 
struck that a bill of such a character as the act of 1872 should have passed without 
their understanding its true purport and effect. I went also to the Committee on 
Mines and Mining and explained the matter to them. They said that the wording of 
the act was evidently not right, and that there was undoubtedly much imperfection 
in the law as it stood. They thought that my supplementary bill had better be passed, 
and then the whole question considered at a later time. I had previously been to 
Drummond. Commissioner of the Land Office, and he had written to two members of 
this committee, suggesting that our bill should be passed. The fact was that nearly 
all our lands had been disposed of under the old system, and the introduction of the 
new one would be a serious inconvenience. 

In regard to the new mineral law proposed, I would suggest that one law should be 
drafted to cover all varieties of mining claims. I have given this subject a little at- 
tention, and it seems to me that the more thoroughly we can simplify the terms of this 
law, bringing it within the comprehension of every miner, whether engaged in lode 
or placer mining, the better it will be understood and the better obeyed. 

As regards the investment of capital, I may say that the reason why I do not invest 
is because of the uncertainty occasioned by the law as it stands at present. In my 
own interest I am paying some attention to the mineral developments of this region, 
and throughout the country I am in correspondence with men who have surplus cap- 
ital to invest. The money that was invested in the Lake Superior region was the sur- 
plus capital of New York, Boston, Philadelphia, and Pittsburgh. A large amount of 
this capital has been invested by my advice and under my direction. We take steps, 
for instance, to develop a mining industry. How do we organize ? One man looks 
over the matter carefully and says : " I can spare $10,000 to put in as capital." An- 
other man contributes $10,000 more, and so on, until the full amount of capital re- 
quired is supplied. These same men who had money to spare to develop the resources 
of the Lake Superior region have money to spare now to develop the resources of Col- 
orado. Is it safe for them to invest in mines here under the present laws? I have 
considered the matter carefully, and have advised these men not to put their money 
into mining operations in Leadville. 

The privilege of purchasing land in whatever quantities are needed or desired does 
not tend to concentrate the landed property of this country in the hands of monopo- 
lists. Suppose, for instance, we undertake to sink and explore a mine. In the first 
place we obtain 640 acres of section land. Add to this a few acres besides, which we 
buy. This land is useful only for mining purposes. For agricultural uses it is worth- 
less. Our vein, say, is only 9 or 10 feet in width running through this property. We 
are obliged to use a great deal of timber. Take the Quincy mine, for example. We 
have used the timber cut from about half a section of land for our purposes in the 
mine. We now have about 10,000 acres of land belonging to the Quincy Mining Com- 
pany. The company will gladly sell that land for less money than the taxes levied 
on it. It would ask security for the taxes only from any one who might wish to lease 
any part of this tract. Now, we must have police protection in the county, and police 
protection can only be had by paying for the support of an adequate police force 
through the taxes. Do you know that no mining company has neglected to pay taxes 
on all its land? Thus we have resources to carry on our local government. Yet 
there is an immense amount of land held by private parties which is offered for sale 
constantly owing to non-payment of taxes. 

If the tracts of land which could be obtained by a private party or a company had 
been limited to 20 acres we should not have developed the mines in the Lake Supe- 
rior region as we have actually done. I am not prepared to fix the limit to the size 
of the lots which should be allowed to any one man. I think, however, that the size 
of the lots should not be very large, but that a man should be allowed to take several 
lots if he has occasion for so much land. 

We entered up our agricultural land in Michigan in quarter sections. There was no 
restriction on the number of entries which a man could make. He might have made 
a dozen entries if he had so chosen. By the State laws we prohibited the purchase 
by one man of large tracts of land from the United States. Our first sales were made 
at $5 an acre, and the prices obtained for land in later sales ranged between $5 and 
$2.50. Two and one-half dollars per acre was the limit, and finally all purchasers 
bought their lots at this price. When the mining laws in our State were first drawn 
and passed the limit of mineral land which a man could buy by a single entry was 
fixed at 2,500 acres. Later it was found that this tract was not sufficiently large, and 
we then passed a law allowing corporations to purchase 5,000 acres. Whatever addi- 
tional amount was needed a corporation could privately buy without any trouble. 

Then our iron industry came into prominence. There was a demand for a larger 
area by the corporations, in order to procure the needed timber. Our lands were ac- 
cordingly thrown open to corporations organized under the laws of our own State, for 



284 PUBLIC LANDS. 

purchase in tracts of 10,000 acres. Corporations organizing under the laws of an- 
other State were allowed to mine in our State by conforming to our State laws, rules, 
and regulations. They had then the same privileges as to purchase of land which were 
given to our own corporations. 

In the session of our legislature in 1876-77 it was thought desirable to codify our 
land laws. At the request of my Mends in the Lake Superior region, I went to the 
legislature and assisted in the codification of these laws. In the codification our aim. 
was to reserve and protect the rights of our State and to make the laws simple and 
intelligible. We had no discussion in reference to the amount of lands which a cor- 
poration should hold. As our law now stands, a corporation may obtain and hold as 
much land as it wishes for. We apprehend no danger from a monopoly of the soil. 
I know that most of our corporations would be extremely glad to get rid of the land 
in their possession at any price. Holding it, they are taxed for unproductive prop- 
erty which is not likely to be of the slightest earthly use to them. 

Before the government surveys of a considerable portion of the public lands, the 
War Department assigned tracts of this land to different parties under pre-emption 
leases. It was found that a particular tract, assigned under lease 98, came within the 
limits partly of section 16 when the public land was afterward surveyed. One corpo- 
ration applied to purchase that portion of section 16 which came within the leased 
lines. I: succeeded in obtaining a title to this land from the State by purchase. An- 
other corporation, however, holding lease 98 from the War Department, claimed it 
under that lease. These companies were respectively the National and Minnesota 
Mining Companies. By the original land law, permitting pre-emption on location by 
authority of the War Department, which was passed in March, 1847, it was further 
provided that the original lessee should have the prior right to purchase the leased 
land, conforming, however, to the subdivisions thereafter to be established by the 
government surveys. One party, the National Mining Company, therefore laid claim 
to the land under their title derived from the State of Michigan by purchase, and the 
other party, the Minnesota Mining Company, claimed it under their lease from the War 
Department. The case of disputed title was carried to the Supreme Court. This 
court ruled that the grant made by the State of Michigan, under the provisions of 
the school act, to the National Mining Company of any land lying within section 16 
was clearly valid. The pre-emption leases held by the Minnesota Mining Company 
conveyed no title to or prior right to purchase any land within the limits of section 
16. The lease conveyed only the right to adjust the leased land to the boundaries of 
section 16, by granting to the Minnesota Mining Company an equivalent amount of 
land outside the limits of section 16. The leased land included within the limits of 
section 16 was the property of the State of Michigan, and had been granted by that 
State to the National Mining Company. Accordingly the National Mining Company 
retained the land in dispute, and the Minnesota Mining Company was allowed to 
adjust their grant under the lease to the boundaries of section 16. 

Instructions from the Land Department at Washington require that all surveys 
shall be made with a solar compass. I have been all over this State (Colorado) and 
found only one compass — boxed up. I could do the work requisite more rapidly 
with a solar compass than with a needle. There are conditions of things often in 
these mountains where an ordinary needle is not worth a snap of a finger for survey- 
ing purposes. For instance, I was traveling yesterday over considerable bodies of iron 
and naturally should not want to depend on such an instrument as the needle in sur- 
veying this district. 



Testimony of William S. Holt, of Colorado Springs, Colo. 

Colorado Springs, Colo., December 26, 1879. 
To the Public Land Corn mission, Washington, D. C. : 

Gentlemen : If it be not too late to reply to your circular letter relative to the 
public lands of this State, which press of business has prevented me from giving ear- 
lier attention to, I beg to say : 

First. That I have resided in this State during the past six (6) years, during which 
time I have been largely engaged in the business of stock growing, including horned 
cattle, horses and sheep ; that I have been a purchaser of large tracts of public lands, 
and bave had the fullest opportunity of knowing the practical working of the present 
land laws. 

Second. It has been my experience that the existing laws, so far as the homestead 
and pre-emption acts go, serve their purpose well, especially since the recent adoption 
of more stringent rules and regulations (such as advertising, &c.) to prevent the per- 
petration of fraud ; and as applied to those sections of the United States (including a 
small part of Colorado) which are strictly agricultural lands, 1 do not believe a better 



PUBLIC LANDS. 285 

system could be devised, either for the government or the settler. But so far as the 
bulk of public lands in Colorado is concerned, those laws are and must remain practi- 
cally inoperative, for the reason that the land is not worth a tithe of its cost under 
those acts. 

I speak now of the eastern one-third of the State, where the chief pastoral wealth is 
found, for the deep snows in the mountain parks render those otherwise delightful 
pastures unsafe for large flocks and herds. 

You are well aware that the portion of the total area of our State to which the ex- 
isting laws are at all adapted is very small, compared either with our whole area or 
with such States as Kansas and Nebraska. 

If an exact inquiry were instituted, I suppose it would be found that of the eastern 
one-third of Colorado not one acre in the thousand would (probably) ever pass out of 
the ownership of the government, under the present land system. 

This eastern third of the State is (mainly) dry, upland plains, destitute of water, 
treeless, and barren of all herbage except a stunted growth of tough (but nutritious) 
grass too sparsely scattered to cover the ground or form a continuous sod. This is the 
character of all the State east of the 27th parallel except in the immediate valleys of 
the Platte and Arkansas Rivers. There is no water with which to irrigate the land. 
The scant streams and intermittent springs (mostly dry by July or August) are from 
10 to 25 miles apart and afford barely water enough for stock to drink. Such land, 
you are aware, no man will settle upon or purchase under the existing laws. It is and 
must always be (in spite of our honored Senator Hill's bill for artesian wells) fit only 
for grazing purposes, and to this great industry the existing laws are extremely in- 
imical. They render the practical stock grower necessarily nomadic and prohibit him 
from surrounding himself and family with any home comforts and from fencing and 
otherwise improving the land he occupies but cannot own because the government 
(with unconscious absurdity) demands that he shall pay the same price per acre for 
lands 20 acres of which will scarce support a single cow and calf per annum as the farmer 
pays for his garden and wheat fields, worth twenty times as much, and of which, if 
he buy any, he must buy several square miles. To attempt to do this would, of course, 
be folly. Hence, he "squats" on the government land by some spring or "water- 
hole," builds the cheapest hut possible in the side of some bank (a "dug-out"), builds 
no improvements, invests his profits elsewhere, has no home, and. lives a nomad's life 
of squalor and discomfort. Not that he prefers this. He would gladly buy the land 
he occupies, fence it, erect comfortable and substantial (and above all taxable) im- 
provements, and live like a " white man ; " but he has no choice in the matter, for the 
traditional $1.25 per acre is as effective a prohibition as if to buy were a penal offense 
unless the man is a fool. Nor does the system of "offering" land, as now practiced, help 
him any. Not an acre of land has been offered in Elbert and Bent Counties, where 
my stock chiefly graze, since I have been in the county — six years. And even if of- 
fered at $1, or even fifty cents, per acre it would avail him nothing. He would be 
about as foolish to buy his grazing lands at fifty cents per acre as at $ 1.25 ; either ex- 
periment on these lands would bankrupt him. But there is a price which he can 
afford to pay, although the increased taxable wealth which would be created in one 
year by giving the actual occupier of the arid lands a good title to them upon condition of 
his building, say $1,000 worth of permanent improvements for every 20,000 acres, would 
amply compensate for the gift, to say nothing of the vast collateral benefits which 
would result to the State from such a policy — benefits greater in proportion to the 
magnitude of the gift than the government can hope even to reap from its lavish do- 
nations to ring corporations. 

But I do not advocate the donation of these lands to anybody. Let the stock grown 
pay a fair price for them, proportionate to their actual productive value as compared with 
arable lands, and let this price be determined by careful inquiry and comparison of facts. 
When this is done, and a price is fixed upon these arid plains at which the stockman 
can buy them with safety, which would be only common justice on the part of the gov- 
ernment toward both classes of her citizens, the farmer and the beef and wool grower, 
no one at all familiar with the business need be told what will be the result. Hun- 
dreds of thousands of acres will be bought and fenced, stock will be rapidly improved 
in grade, permanent improvements will be built, the stock grower's spare capital will 
be invested at home, schools Will be set up, and the nomad will have a house. 

I know many men who feel keenly the injustice of the government in persistently 
keeping their vocation (of so great national importance too) under the ban, and them- 
selves exiles. They would gladly purchase their range and improve it ; and are 
eagerly looking for some speedy move on the part of the government in that direction. 
What the price shall be must of course be determined by intelligent comparison of 
the dry upland acre with the fertile valley acre. My own opinion is that the ratio of 
actual productive and probable market value of the former as compared with the 
latter, in this State would be about as one to twenty. 

Where lands are already occupied the present occupant should have the prior right 
(for say 2 years) to purchase ; and as water is indispensable to stock pastures, each 



286 PUBLIC LANDS. 

man should have the right to buy the land half way to his next neighbor's spring or 
water-hole. This rig ht should of course be limited to a reasonable period ; after which 
if the owner of the contiguous water or its occupant did not choose to purchase his 
half of the range it should be thrown open to all the world to buy. 

Not less than 15 acres of our best grazing lands are requisite for every head of horned 
cattle ; and from 5 to 7 acres for a sheep. Horses require more than either. The an- 
nual loss to the State resulting from lack of fences, such as direct loss of cattle and 
enormous expense of hunting for them all over the country each spring and the mor- 
tality among cows and calves incident to and inseparable from the " round-up" sys- 
tem (necessitated by lack of fences) is something enormous. All this would be avoided 
if the government would permit us to own our lands or even to rent them for long 
terms at a nominal rental. 
Very respectfully, 

WM. S. HOLT. 



Testimony of J. C. Jones, West Las Animas, Colo., relative to pastoral land, pastoral home- 
steads, agricultural land, and cattle raising. 

Trinidad, Colo., September 6, 1879. 

J. C. Jones, of West Los Animas, Colo., made the following statement : 

I have been in the cattle business for twenty-five years in Texas and California. I 
have about 16,000 cattle. My range is about 50 miles long and 30 miles wide, part in 
Las Animas County and part in Bent County. Most of it has been surveyed into 
townships. I own about 1,800 acres to which I have government title, and on which 
are water privileges. The county is slightly overstocked. We have some trouble 
with sheep. I think it would be better to keep them by themselves, apart from the 
cattle. I do not think they improve the earth ; on the contrary, I think they injure it 
for cattle by reason of their running over it and trampling it down, and they crop too 
close to the earth and leave a scent on the ground so that cattle will not run where 
they have been. I do not think the water privileges are yet all taken up. Taking it 
winter and summer I think it will require 30 acres of land to support one beef. I have 
one .pasturage of 160 acres of irrigated grass that will sustain about 40 head of cattle 
year in and year out. The altitude in Las Animas County is about 6,000 feet, but in 
Bent County it drops down to 3,000 feet. I think the parties occupying these lands 
ought to be allowed to get titles to it from the government, and I think 10 cents would 
be dear for it. I would not sell it in unlimited quantities, but I would protect those 
who are there now. I am in favor of the pasturage horn stead and I would give each 
one 3,000 acres; but I think the settler ought to be required to improve the land. 
There is no hope of this land becoming agricultural land, at least in the portion, of 
country I live in. I do not suppose that there is more than one acre in 1,000 that is 
cultivated for agricultural purposes, and what agriculture has been has not paid. I 
can send away and get vegetables and corn cheaper than I can raise it. It costs about 
three times as much to raise it as to go east and get it. 

My cattle market is in Kansas City, Mo. I do not know where the cattle go after 
they leave Kansas City. Cattle dealers in Kansas come to our State and purchase 
cattle and feed them on the surplus grain of Kansas. We have a place in Kansas 
now where we have about 1,200 steers fattening for market. You take a steer worth 
$25 from here to Kansas and fatten it for market and it brings $40. These steers cost 
us about $22.50, and we sell them for $38 or $40. There are vast numbers of these 
cattle taken to Kansas for this purpose. If these herds were not raised here and taken 
to Kansas, there would be no use for the surplus grain grown there. I think that 
about 100,000 head of cattle have been taken out of this State to Kansas to be fat- 
tened for market. 

I think these questions of homesteads and disposition of the land ought to be at- 
tended to right away, for if it is not it will lead to serious conflicts. In fact it has 
done so already. There are quite a number of such cases now. 



PUBLIC LANDS. 287 

Testimony of A. J. Lamb, cattle-groiver, Pueblo County, Colorado, relative to agricultural and 

timber lands. 

I 

The questions to which the following answers are given will he found on sheet fac- 
ing page 1. 

Muddy Creek, Pueblo County, Colorado, 

September 26, 1879. 
Question 1. Name, &c. — A. J. Lamh, Greenhorn Creek, Pueblo County, Colorado ; 
occupation, a cattle-grower. 

2. Have lived at my present residence twelve years. 

3. Have acquired title to 160 acres under the soldier's homestead law. 

4. Only through the perusal of newspapers. 

5. A person can get his title at this (Pueblo) land office any time after six months 
from the date of his filing on any tract of public domain. The expense attached 
thereto varies from $40 to $60. 

6. Do not know of any defects in the land laws ; none, however, have come under my 
personal knowledge. 

7. The lands in this section are chiefly broken (apparently by volcanic eruptions) 
with some open prairies. The lands are principally pastoral, and a very small pro- 
portion susceptible of agriculture. No indications of mineral in this section, and no 
timber excepting along the base of the mountains. 

8. I think the lands here should be designated desert lands, and this rule I believe 
will cover the entire area of Southern Colorado, as in some parts sand predominates 
while in this vicinity the general aspect is broken and very rocky. 

9. I would recommend that the actual settler be entitled to the lands covering his 
water-front half way to the next stream, both ways, as the lands out from the creeks 
are valueless unless the person owns the water. 

. 10. Would recommend that the actual settler be entitled to a homestead of, say, not 
less than 2,500 acres, and such of those that wish to purchase more land be enabled to 
buy it at a price not to exceed 10 cents per acre, as I do not think it would bring more on 
the market, for in buying a tract of land one must buy some that not a blade of grass 
will ever grow upon. And again, this would return a handsome revenue to the general 
government, as well as bring more taxable land in the county. And, also, that it be 
sold in parts, to allow the actual settler an opportunity of purchasing land, for if sold as 
a whole the lands would perhaps be bought up by speculators, to the detriment of old 
settlers. And here I will add that the pioneers have taken up all the lands along the 
creeks, and, of course, the lands lying away from the water are of no account to any one. 
However, if large companies of capitalists should come in here and buy up this land, 
they would either compel the cattle-grower to pay exorbitant pricesforthe land, or else 
to move his cattle. 

AGRICULTURE. 

1. The climate is good and healthful ; the seasons are rather short, I suppose on ac- 
count of the nearness of the mountains ; the rainfall is light in the spring of the year. 
As to the snowfalls in winter, this is variable, as some winters it is heavy , while others 
the fall of snow is light. The supply of water depends altogether on the amount of snow 
in the mountains, as all the creeks here are fed by the snow in the mountains. 

2. The rainfall occurs from the middle of July to the last of August, and comes very 
irregular, as it sometimes inundates the whole country. This country is subject to 
waterspouts, and when they break it floods the whole country ; and the waterfall comes 
too late in the season for irrigation. 

3. There is not any land that will raise a crop without irrigation in this country. 

4. Taking one hundred as a maximum, I would^ay that not over 5 acres in every 
100 is fit for cultivation, as none but the low bottoms on the creeks can be farmed at all. 
The bottoms are very narrow, and, besides, the streams do not supply water enough to 
irrigate what land could be i armed. 

5. Corn, wheat, oats, and barley, with vegetables of all kinds, can be grown here, pro- 
vidingthere is sufficient water to irrigate them. There is, however, not enough of these 
raised in this country to supply the demand, owing to the frequent droughts, the grass- 
hoppers, and the expense of irrigating. The above-named articles can be and are 
shipped in here from the east for less than they can be produced here. This is de- 
cidedly a cattle country, and useless for anything else. 

6. The water is run in ditches and is not gauged, as the custom here is that where 
two or more own a ditch jointly they use the water day about ; and, besides, I have never 
seen a hundred-acre wheat field in Southern Colorado, and therefore have no way of de- 
ciding the quantity of water required for that amount. 

7. The source of all the water, and the supply, depends altogether on the amount of 
snow in the mountains. This season the supply has been short. 

8. From my own observation I would say that the land is not injured any way by 



288 PUBLIC LANDS. 

irrigation. Small grain, such as wheat, oats, barley, and also potatoes, can be grown 
at an altitude of 6,000 feet in the mountains. 

9. When the streams are low the water is generally all exhausted in the ditches. 
The common rules are that when the ditch is running full that all the owners of the 
ditch may use the water at the same time. What water is not used is voluntarily re- 
turned to the creek. We have, however, good water laws in Colorado. 

10. The settlers have taken up all the water by entering or homesteading the land 
laying on each side of the creeks. 

11. No conflicts about water of any consequence to my knowledge. 

12. About 95 per cent, of the lands are adapted for pasture only. 

13. I think it practicable to establish homesteads of 2,500- acre lots. This amount of 
land will about keep 100 head of cattle ; but I do not think any one wishes to confine 
himself to only 100 head. Some cattle men own from 2,000 to 5,000. 

14. I think it advisable for the government to put these lands (outside of the before- 
mentioned homesteads) on the market for private entry, and let every settler be allowed 
to purchase such quantities as he is able to, providing he takes lands opposite his 
water-front. 

15. The pasturage in the northern part of the State is much better than this, as there 
is as much grass growing on one acre there as on three here, and I do think it will 
require at least 25 acres of this grass to keep one beef and fatten it for the market. 

16. A family can eke out a livelihood on from 100 to 150 head of cattle of all kinds. 

17. It is impossible for me to say how many cattle there are to the square mile here. 

18. The growth of grass has diminished and is not so good a quality for winter as 
formerly. 

19. There have been some few small pastures fenced with good success. If cattle have 
shelter to protect them during storms they can be confined in pastures in safety in 
winter. 

20. The quality of herds would be greatly improved by in closing the cattle in pas- 
tures and a larger increase in calves be obtained. « 

21. Cattle have to come to the creeks for water, excepting during the rainy season, 
when water stands in shallow holes on the prairies ; but this is of short duration; the 
creeks are the main supply. 

22. I think that two sheep will destroy as much grass as one beef. Owing to the 
dry seasons here the grasses are cured early, and the sheep, going as they do in a com- 
pact flock, cut the grass down. It is not what the sheep eats, but what he destroys. 

23. The growth of grass has diminished more so where sheep have grazed than where 
cattle or horses have used. 

24. Cattle will not feed where sheep have grazed unless they are inclosed in pastures. 

25. Southern Colorado was first settled by cattle men, and when it became civilized 
the sheep men rushed their flocks in and drove the cattle from their accustomed range, 
and hence there is no friendly feeling existing. 

26. There are between 30,000 and 40,000 head of cattle in this county; they run at 
large and all mixed together. There are from 12,000 to 18,000 head of sheep in this sec- 
tion, herded in flocks of from 300 to 2,000. 

27. I would suggest that the public lands be disposed of in the manner stated above, 
and think it the best way. 

28. The corners can be readily found in this locality. 



1. The only timber there is in this vicinity is a scrubby growth of cedar and pinon, 
useless for anything but fire- wood and shelter for stock. 

2. Not any timber planted here. 

3. There is no grass growing on tfcis timber land, and I think it would be best to let 
it go as the other public domain. It would answer for shelter for stock. 

4. This being the only variety of timber, it would be useless to classify it or put it up 
separately for sale, as no one wants it for the timber alone. 

5. There is a second growth, apparently, but it is of such a slow growth that it takes 
almost an age to acquire any size. 

6. The forest fires are chiefly the work of the Indians, who fire the timber to drive the 
game. The destruction of timber has been very great in the mountains. The only way 
to stop the fires is by heavy rains falling, or send the Indian where he won't have to 
start a fire. (Original.) 

7. In this immediate vicinity the timber is not worth depredating upon, but along 
the base of the mountains the waste has been very great by railroad companies cutting 
ties. Would advocate the legislation of some laws to protect the timber. 

8. It is customary for the settlers to go to the nearest point for fire- wood. Corpora- 
tions, as railroad companies, go to the best timber and cut what they choose for ties, 
bridges, and other purposes. 



PUBLIC LANDS. 289 

9. We have at this land office very efficient officers, and I think the timber laws 
would be better executed if under the administration of district offices. 



Have had no experience in mining : consequently have no idea about it ; so Trill not 
try to answer those questions. 
Respectfullv, vours, 

A. J. LAMB. 






Testimony of J. B. Low, mining engineer, Denver, Colo., relative to mineral laws, $'c. 

Denver, Colo., September 2, 1879. 
J. B. Low, residence at San Francisco, Cal., but temporarily resident in Colorado; 
occupation, mining engineer. 

In mining litigation I have always aimed to compromise contests, and hence have 
had but little direct connection with actual cases in court as party or witness, but 
have been more or less mixed up in the Comstock litigation and have had indirect con- 
nection with much of the mining litigation all over the country. My connection with 
mineral matters has continued ever since there has been mining in California. 

Under the present system parties can first locate their claims with no other restric- 
tions as to locality than their own pleasure, and can also similarly secure surveys from 
the government, putting, if he pleases, his location or survey directly over the previous 
one of another party. In my opinion this practice is simply awful, and leads to inter- 
minable confusion and litigation. The instances are so numerous that it would be 
almost impossible to enumerate them. Hence nearly every application for patent is 
adversed by numerous parties, and I know of scarcely an instance of a mine of value 
where such is not the case. 

Literally speaking, the apex of a vein is its highest point : but in my understanding 
the correct meaning of the term is that if a man sinks a shaft and strikes a vein, the 
point of discovery is his apex, and he should be entitled to hold the dip, with the under- 
standing that some subsequent locator may have struck a higher point in the same 
lode. . 

The top or apex, the course, and angle or direction of the dip cannot always be deter- 
mined in the early workings of a lode, because there are frequently derangements in 
the course of a vein by movements of the upper surface, so that he may at first suppose 
his vein to run in one direction, when by going deeper he finds that its course has been 
changed by such displacements. For illustration, a vein may apparently enter the side 
of a mountain at a given angle and course, but it subsequently proves that at some 
time the surface of the mountain has slipped down and broken off the vein, thus leaving 
a break between the two parts ; or again, the upper end has been bent over parallel 
to the surface, but after going down a certain distance the vein turns down into the 
earth. 

In view of these and similar facts, and inasmuch as foregoing technical terms are 
essential parts of existing law, the rights of a discoverer are not properly protected. 
The law compels a discoverer to locate his claim by these terms, instead of putting it 
upon the actual discovery of mineral. A man almost necessarily has to locate his claim 
before he has made sufficient development to tell certainly where his vein runs. If he 
does not do so, he is liable to have a prior location put over him. If he does do so, aDd 
makes a mistake through reliance upon the surface indications, he is without remedy 
and loses the benefit of his actual discovery of mineral. Within my knowledge, and 
frequently, litigation and injustice have grown out of the impossibility of determining 
the above points in the early history of a mine. 

Have often known of two veins, parallel or otherwise, of the same outcrop being 
located by different parties and giving rise to contest. It frequently happens that 
the country rock has fallen in upon the outcrop, so that the vein matter is divided 
for many feet — sometimes more than a hundred feet — and different parties may inno- 
cently locate upon both of these veins, but when they have gone down find the vein 
matter to unite, and hence a conflict. I have known of cases where in such contests 
the original locator has been cut off in depth by the later locator. 

The outcrops of veins are often much wider than the legal width of claims, whether 
under State, Territorial, federal, or local laws. Frequently the outcrops of narrow 
veins deviate from a straight line and pass beyond the side lines of the claim, owing 
mainly to the irregularities of the earth's surface. They may be covered over with 
debris or float, so that it would be impossible to tell the true course of the vein. 

The practice under the present law of permitting locations on alleged mineral 
ground, but without certainty of actual mineral, works to the disadvantage of discov- 

19 L C 



290 PUBLIC LANDS. 

ers of true lodes. To a certain extent an unlimited right to locate and take the claims 
of subsequent discoveries operate to the encouragement of prospecting; but on the 
whole it works to the advantage of mere jumpers by permittiug them to watch until a 
valuable mine is opened, and then by locating in barren ground adjoining to sink a 
shaft to the dip of the other man's mine. Then the first party, and who really dis- 
covered the lode, has to go into litigation and can only get rid. of the jumper by 
tracing out the identity of the lode and thus digging out the jumper. This destroys 
the profits of the mine and discourages the operators. As an illustration, the Twin 
mine in Leadville district furnishes an excellent instance. Discovers of rich veins or 
their assigns are often burdened with costly litigation — ruinously so — to defend their 
rights against subsequent locators, and almost invaraibly such legal attacks are di- 
rected to the part of the dip which has passed beyond the exterior line of the sur- 
face tract. 

I have thought a great deal about the question whether this unlimited right to 
follow this dip business could be continued or controlled in any way so as to make it 
feasible, and I have talked with many other parties on the same subject ; it being known. 
to us all that many camps have been destroyed and abandoned from this cause ; but 
none of us have been able to see how the dip idea could be retained and avoid the 
ruinous consequences which have uniformly attended it. 

I have taken part in organizing mining districts, and have been chairman of a com- 
mittee for such organization. First a notice was published by any one who chose to 
issue it, presumably to the miners in the immediate vicinity, but usually intended 
to reach the party's immediate friends, and to the effect that a miners' meeting would 
be held, generally without saying what it would be for. Upon assembling those 
present proceed to define the limits of the district; to prescribe how large a claim can 
be located therein ; to elect a recorder, whose general duty it is to record anything 
that is brought him, and to pass any regulations in their pleasure for the gov- 
ernment of the location and development of mines in their geographical limits. 
Sometimes only sufficient parties are present to fill the offices, viz : presiding officer, 
secretary, recorder. Districts have probably been organized by only three or four 
parties, and I have personally known them to be organized by nine persons. These 
parties are not necessarily either actual miners, residents, or citizens of the United 
States. No inquiry is made upon these points, it being assumed that by coming to the 
meeting they are qualified. The recorder's duty is to keep a record of any location 
offered by him ; and as his compensation is by fees, his natural interest and tendency 
is to accept and record anything offered him. Whenever called upon to do so, he gives 
a copy, certified by himself, of the record of such papers, a fee therefor being charged 
for his use and benefit. I have never known any security to be required from such 
recorder for the faithful performance of duty, and the honest performance of same 
is entirely dependent upon his personal integrity. As a rule no body of men, jumping 
tip in the wilderness, excel the miners in personal integrity and a general intention 
to do the right thing; but they are often unacquainted with the conformation and 
wants of their section. They are usally gathered together suddenly by mineral dis- 
coveries, and have not had time to understand their real necessities. The situation 
cempeis them to hasty and illy considered action. 

Tke mode of locating a claim in such districts is as follows : 

A prospector discovers an outcrop with a blow-out, or blossoms rich in mineral ore, 
and he supposes the lode to run north and south. He at once stakes out a claim ac- 
cording to the laws of that district, if one has been organized. If one has not been 
organized he stakes out according to his own notions, or to the laws of some district 
in which he had previously resided. He takes one claim for himself by right of dis- 
covery and one as locator, and then uses the names of various friends to make enough 
other locations to cover what he thinks would be the lode. He sticks up on a tree 
or rock a notice of his claim, describing it in vague terms by natural objects, as a 
tree, or peak, or ravine, &c. Then he hunts up the friends whose names he has used, 
and tells them what he has done. He says, "John (or Jim), I have discovered a mine 
and used your name to locate it, and want you to give me a deed of your interest." 
A deed is executed for the nominal consideration of $1 which puts the whole claim 
in the one party, although upon the notice stuck up on the claim for the informa- 
tion of the public there are a number of parties. Then he goes to the mining re- 
corder and records the notice. 

The effect of that record is similar to any other public record, and is usually held 
sacred. That original location goes into the courts, and, no matter how indistinct 
the notice may be, it is the basis of the mining title, and the courts must get at 
the intention of the party as best they can when the party subsequently makes ap- 
plication to the United States for a mineral patent. A copy of tins certificate of 
location, certified only by the mining recorder, bus to be accepted by the govern- 
ment as the sole evidence of location, and i.s the foundation of the entire proceed- 
ings. 

Whether that record can be subsequently amended depends upon the original law 



PUBLIC LAXDS. 291 

of the district. Laws sometimes allow amendments by a two-thirds vote of the 
miners in the district, and the laws themselves can be changed by a similar vote. 
Within my knowledge mining titles have been disturbed and litigated through 
fraudulent manipulation or destruction of these mining records. I have known in- 
stances where the entire records have been spirited away for purposes of speculation 
or to aid one side in a lawsuit ; where they have been destroyed in whole or in 
part; where they have been changed by erasures or interlineations, &c. I know 
of no security against the perpetration of such frauds, and in case of their destruc- 
tion there are no means of reproduction. 

In my opinion, all mining district laws, customs, and records could and should be 
abolished, and the initiation of record title be placed exclusively with the federal 
land offices, just the same as is the practice under all other laws for the acquisi- 
tion of titles, inceptive or consummated from the United. States. 

Undoubtedly the adjustment of controversies concerning mineral lands and prior to 
issue of patent should be left absolutely to the United States land offices, in the same 
manner as contests under all other land laws. The main reasons therefor are as fol- 
lows : The great delay and expense in the courts, and the practical impossibility of 
getting a hearing therein within any reasonable time. The operation of mines are 
often stopped by injunctions and cross-injunctions upon suits in court, where the said 
court does not hold more than two terms in a year and then adjourns in a week 
or so without trying a mineral case. Parties have to bring up and hold together a 
cloud of witnesses at great expense, and often bring them up term after term. A 
fairer result can necessarily be obtained from a trial before an officer far distant 
from the locality of the controversy than before a jury from the immediate vicin- 
age, and the absence of taxable costs in the executive department of the United 
States saves parties litigant great expense. 

Believing that the practice of following the dip beyond the side lines of a claim 
is incompatible with satisfactory administration of the mining laws, I would sug- 
gest some such method of location as the following : 

Square locations with vertical lines in area of not less than 40 acres to each claim, 
and not to exceed 160 acres. They should be surveyed in the first instance by a 
government surveyor, and thereafter the party should be required within a stated 
time to complete his title from the United States — savin about one year. I would 
not permit any survey to be made in conflict, in whole or in part, with any previous 
survey still in valid existence ; and I would permit the party to purchase from the 
government an end for the stated time, without reference to whether he had or had 
not actually discovered mineral. At end of the year, if the party failed to pay in 
his purchase-money, the survey on file should be canceled and the tract be opened 
to any other party. 

I have owned and worked placer claims on a large scale. I have not known of titles 
obtained under the placer law for absolutely non-mineral lands, though such claims 
naturally may have stretched out so as to include lands not containing mineral in pay- 
ing quantities. Of course parties suppose the lands to be mineral when they take them 
up ; and if they prove not to be so the price paid to the United States is large enough 
to remove any reasonable objection to the transaction. 

I think that lode claims have been taken up under placer claims, but do not think 
it was the original intention of the parties. They have usually been discovered in 
washing off the surface while washing the placer claims. In such cases the placer 
claimants should be entitled to anything they find under their claims. 

I know of valuable placer lands where the claimants have been obliged to purchase 
from adjoining parties other lands in order to secure an outlet, without which outlet 
the mine could not have been worked. I think that placer claimants should in some 
form be entitled to locate a right of way or outlets to their claims. 

As to mill-sites, I think that the present restrictions as to location on non-mineral 
lands should be removed. Many parties now have to perjure themselves to secure 
such location where it is required and where only his mill can be put. 

If the system of square locations with vertical side lines is put in force, the tunnel 
location privilege should be repealed. It would be incompatible to give a man on a 
surface location everything below and at the same time to allow another party to cut 
under him with a tunnel location. 



Testimony of John McCaskill and others, Pueblo, Colo. 

Pueblo, Colo., August 29, 1879. 
John McCaskill, M. D., president Southern Colorado Cattle Growers' Association, 
and others, made the following statement : 

I should say that on an average it would take 25 acres of the pasturage land of this 
region to fatten one beef for the market. The grass on the ranges decreases from 
year to year under grazing. I think the quantity of grass on a range now is about 40 



292 PUBLIC LANDS. 

per cent, less than it was seven or eight years ago. There were hay lots then that 
could be mown, hut now they are done away with. At that time -there was not one- 
fifth of the cattle that there are now, and the quality of the range decreased as the 
stock increased. There are in Colorado now about 500,000 head of cattle, 200,000 of 
which are in this land district. These are worth at least $2,500,000. I do not think 
there can be any more cattle introduced here than are here now. They are driving 
them out on account of the scarcity of grass. Three men moved out of my district 
last week, owing to the lack of grass, and more than 30,000 head of cattle have been 
taken from this vicinity on account of the scarcity of grass. They went to the Pan 
Handle of Texas. Our cattle roam at pleasure, none of the large herders having 
fences. A better class of cattle could be raised by fencing. I think our cattle would 
improve from 30 to 40 per cent, if the ranges were fenced. Our cattle are sold in 
Kansas City, Mo. They are moved by rail over the Atchison, Topeka and Santa Fe 
and the Kansas Pacific roads to Kansas City. Many of them go to Chicago and also 
to Europe. They can better afford in the East to pay $4 per acre than we can in this 
portion of the country to pay 10 cents per acre. Not one out of ten of the farmers 
south of the divide in this land district can make more than a living. Farming does 
not pay in this district. The cattle business only brings in 20 per cent. Most of the 
streams go dry at the season when they are needed to ripen the crops, and in this por- 
tion of the country the use of water destroys the good, properties of the soil. The 
water seems to run the soil together like mortar and injures its growing properties, so 
that the yield of grain decreases from year to year. All the water in the district is 
used for irrigation, and the area of irrigated land cannot be extended. The capacity 
of the streams could be doubled, so far as the water is concerned, but the acreage can- 
not be any further increased. 

Any amount of corn, flour, and potatoes is shipped here in the winter, and stall-fed 
beef is shipped here from Kansas in the spring. This has been the case for the last 
three years. Mr. Wetzell, secretary of the Denver Cattle Growers' Association, told 
me that over half a million dollars' worth of beef was shipped to the mountain towns 
of Colorado from Kansas. Cattle do not fatten here sufficiently for market till Sep- 
tember and October, and after that time they do not take on any more flesh. Six or 
seven years ago cattle could be turned out any time in the winter and they would fat- 
ten by spring. 

If farming was steadily pursued grain enough could be produced to supply the local 
demand, but it is not profitable and so it is not done. There are not as many acres of 
land tilled for agricultural purposes now, by one-fifth, in the county of Bent, which 
is in this land district, as there were. Huerfano County is in the same condition. In 
Pueblo County there is not as much farming as there was ten years ago. When every- 
thing could be sold to the Army there was no difficulty in selling it, and they got from 
4 to 6 cents per pound for their corn ; but now we can get our corn for about 90 cents 
per hundred from Kansas, and that is cheaper than they can raise it. Another draw- 
back to agriculture is the grasshoppers. In Huerfano County, where I live, six years 
out of seven we have had the grasshoppers, and they cleaned up what the drought 
left. Theydidnotmateriallyaffectthecattleranges. Another difficulty is that the lands 
being low they are subject to inundations, and the floods materially injure the crops. 
Agriculture is very precarious and not profitable. Mr. Pollard, in the county of Pueblo, 
has 800 acres under fence and tried agriculture. It was well ditched, near the mount- 
ains, and favorably located, but he failed, as the water has been out of that locality 
for two months. The water does not come at the proper time. The great supply comes 
in the spring, and when they need it, it is all gone. Mr. B. B. Field, cattle owner and 
farmer, in Pueblo County, has 1,000 acres of land that six years ago was assessed for 
$40,000 and now it is assessed for $8,000. If the cattle men had the land there would 
be no agriculture, except enough to raise a small amount of grain for stock purposes. 
The place that I occupied seven years ago they wanted $3,000 for, and three years ago 
I bought it for fifteen cows and calves. This is agricultural land, under fence, and 
ditch. When the railroad came in it so lowered prices that agriculture was no longer 
profitable. I think that there is at least 3,000 owners in this land district and they 
average two employes each, making an aggregate of about 6,000 employes, and the 
value of agriculture as against stock-raising is about as one to six. 

There are in this State about 400,000 sheep, and I think that about 250,000 of them 
are in this land district, and they are worth at least half a million dollars. It is very 
injurious to a cattle range to feed sheep upon it. The sheep nibble very close and 
their feet are so sharp that they cut the grass and the wind blows the grass away; 
then, too, the grass being eaten down so close it does not come up again readily. They 
also destroy the winter range. While the cattle arc gone up on the summer range the 
sheep come along and eat up the winter range. If the ranges were fenced this would 
be obviated. There is much trouble with jumpers. The Texas cattle man will pome 
along, and, if he finds water, lie will locate' en your range and eat it all off, just as the 
sheep men do. When the time comes to pay taxes they move oil'. There is a row he- 
he cattle and sheep men all the time on account of the inroads of the sheep 



PUBLIC LANDS. 293 

upon the cattle pastures. This could all be stopped by fencing. If the land could be 
purchased in large tracts this would settle the whole matter ; of course giving both 
an equal chance to buy. The jumpers and Mexicans do not wish to have fences, be- 
cause then, if they owned the land, they would have to pay taxes and could not roam, 
where they please. On account of the dry climate sheep require a great deal of water, 
differing in this respect from the Eastern States. Because of the inroads upon the 
ranges, sheep men are fighting among themselves. Owing to the fact that the ranges 
are overstocked with sheep, the grass is being eaten out completely and the ranges 
entirely destroyed. Some men on the Chico are commencing to fence the public do- 
main. As a result of this, some of their neighbors are having their ranges taken away 
from them. If the opportunity was offered they would buy this land at low prices, 
but as they cannot buy it there will be trouble. 

The difficulty about fencing the public land is this : One man fences and another 
fences and another, and when it comes to be entered properly in the laud office the per- 
son making the entry will be resisted by the persons who are in possession, when he 
goes to take up his land. This causes a great deal of difficulty and often bloodshed, 
inaugurating a sort of "squatters' war." If the lands could be purchased from the 
government in large tracts and fenced, a-better class of cattle could be produced. One 
half of the cattle that we now have would then produce as great a profit. The grass 
is running out so that the cattle will not get fat enough for market, and they will be 
compelled to take their beef cattle off to fatten them. Last winter and this winter 
too we buried in Pueblo County 3,500 head of cattle that died from starvation. By 
taking the beef off and fattening them in Kansas, you can support just that many 
more stock cattle. If the stockmen could buy their ranges they would build good 
houses, make permanent improvements, and live there ; but as it is now, they do not 
make homes there. If you go into the country now, you will see only one-story log- 
cabins, because they do not know how Long they will be able to live there. 

The increase of 100 head of cattle would keep a man with an average family. I 
think the pasturage land should be disposed of at a price that would enable a man to 
acquire sufficient to sustain 100 head of cattle ; that is, about 2,500 or 3,000 acres. This 
would be about equal to the agricultural homestead of 1G0 acres. This land is not 
worth more than 10 cents per acre, and if it is disposed of, the sheep and cattle men 
should have an opportunity to enter land in proportion to their stock, provided they 
availed themselves of the privilege within a certain time after the passage of the act. 
Perhaps it might be well to dispose of this land at a price which decreased from year 
to year as the better class of lands were disposed of. 

Five sheep are about equal to one beef, and in taking a pasturage homestead this ratio 
should be observed. 

Question. Are the water rights all taken up in your county ? — Answer. Yes, the 
water rights are all taken up. 

The following members of the association being present, concurred with Mr. Mc- 
€ashill in his statement : D. B. Berry, secretary of the association, M. B. Price, Lud- 
wig Kramer, Geo. M. Chillcott. 



Suggestions to the Public Land Commission by JST. C. Meeker, White Biver Agency, Colo. 

White Eiver Agency, Colo., August 25, 1879. 
Sir : I have received your circular letter ; also, Major Powell's "Lands of the Arid 
Eegion." There are so many points on the subject of the land laws requiring the most 
careful consideration that I do not feel prepared to recommend any changes as regard 
homestead and pre-emption, and I say this not because changes ought not to be made, 
but because I doubt whether they would produce the desired result. When w r e made 
the settlement at Greeley, Colo., Ve were greatly embarrassed by the land laws, be- 
cause they were not framed to apply to an arid region, since in no case do they recog- 
nize a right to water as being attached to the realty. On the contrary, decisions seemed 
to be adverse, as to waste the water of a stream had been forbidden. But in our im- 
portant enterprise we were forced to attach water to real estate, and this we did by 
the power of our corporation, which, owning the water under the law, granted its use 
in perpetuity to all colony members. This plan worked well in every particular ; in- 
deed, it is a perfect success, but like success has not, so far as I have been informed, 
attended any other colonial enterprise, for the right to water has passed into the hands 
of capitalists, and it is sold to the cultivators of the soil at an annual rent. If settle- 
ments could always be made as our settlement was made, and be carried out to the end 
as we carried it out, changes in the land laws would be desirable. It might or it might 
not be worthwhile to incorporate a principle into the general land laws which must un- 
derlie the title to water, viz, that priority of appropriation gives priority of right ; but I 
think this is embraced in our State constitution, and perhaps in judicial decisions. It 



294 PUBLIC LANDS. 

is a principle fully important as any principle in regard to the title to land itself, and 
its disregard would destroy the finest farm regions and cities and towns in one-half 
the territory of the United States, for if it shall be granted that water is free for who- 
ever wishes to take it, and at any time and in any place, our whole system of local 
legislation and usage will be overthrown. A most important question in connection 
with this principle is whether priority covers what the line of the survey of a ditch 
is capable of watering, or only the actual capacity of the ditch at the period of time 
priority is claimed. I do not think we have yet had any decision on this point, but it 
is absolutely certain to arise. 

If any new laws can be enacted and put in force that shall preserve the timber of 
the mountain regions and even of the valleys of the rivers, great good would follow. 
The destruction of timber is largely by fires, and as Major Powell states more by In- 
dians than by white men. Indians look upon timber as of no more value than rocks, 
to be used if they need. Thousands upon thousands of acres of pine, aspen, and Cot- 
tonwood are fired every year that the squaws may readily get dry wood the next year, 
a short-sighted way of providing for the future. A great danger arises from the de- 
struction of mountain forests, since when destroyed the snow melts quickly and the 
rise of the rivers is early in the season instead of later when so much needed for irriga- 
tion. Whether cultivation has an appreciable effect in an increase of rainfall is doubt- 
ful. Precipitation of moisture depends on elevation relative or direct, more than any 
other cause. Salt Lake did rise a few years ago, and the argument in favor of 
cultivation would have continued good if Salt Lake were not now falling. The area of 
cultivation in comparison with that of the pastoral, in all arid countries, is exceed- 
ingly small ; everywhere evaporation is rapid, and human influences and efforts can 
have but little effect on natural ones. 

New laws should be enacted in regard to the pastoral lands. They should be rented 
for a series of years, twenty, thirty, or forty, at a nominal sum, and in parcels ranging 
from a section to two or more townships. This plan will permit men of small means 
to commence the stock business and give men heavily in the business wide range, and 
both can then arrange for summer and winter grazing. Whatever government might 
get in rent would be a gain, because these lands cannot be sold, certainly not at present 
prices, while stock growing would become fixed on a permanent basis and the grades 
of cattle and sheep would improve. This plan would remove a business now run on 
community principles to one run upon individual responsibility. 

All these hints are submitted with great diffidence. 
Eespectfully, 

N. C. MEEKER. 

Capt. C. E. Dtjtton, 

Secretary Public Land Commission, Denver, Colo. 



Testimony of Henry H. Metcalf, River Bend, Elbert County, Colo. 

Denver, Colo., August 20, 1879. 

Henry H. Metcalf, River Bend, Elbert County, Colo., testified as follows : 

Question. What is your business? — Answer. Cattle raising. 

Q. In what section? — A. On the Big Sandy, Elbert County, Colorado. 

Q. Do you own the land on which you range your cattle? — A. (July my homestead 
and pre-emption. 

Q. What amount of cattle have you? — A. Twelve thousand head. 

Q. Over what amount of territory do they range ? — A. I allow them to range 45 miles 
to the east ; that is along the river, and 18 miles to the west. 

Q. How far north and south? — A. To the Platte 85 miles. South they run about 40 
miles. I consider them home in that distance. 

Q. Now, then, how much territory would it take, supposing you owned the whole of 
it, and they were fenced, to sustain these animals?— A. I would not dare to put the 
animals inside a fence without allowing 20 acres to the head. 

Q. Do you think in your region 20 acres to the head would be sufficient in all years? — 
A. In the average year it would ; but even then if they were fenced, in the event of 
certain storms which we have, as you know, I would rather my cattle should be out- 
side of the fence anywhere, in preference to having them stop moving. I would not 
dare to allow less than 20 acres to the head. In Texas they allow 5, but you know there 
is more grass in Texas than here. Wherever there are any large water-courses I should 
allow more thau that, for a large part of such land would not have any grass. They 
annually kill it. 

Q. I understand you to mean that around water-courses where cattle drink the 
grass is necessarily stamped out? — A. Yes; it is all gone. 



PUBLIC LANDS. 295 

Q. Suppose, in this ideal plantation, in which every one fenced stock in, with 20 
acres to the animal, what distance around each spring and along the rivers would be 
trampled out and rendered barren ? — A. With us, along the Sandy, a strip 500 yards 
wide is trampled out. The cattle go down to drink, come out to paw and lie down, 
and then go back a second time and drink. 

Q. Do you notice any very great variation in different years of the amount of grass ? — 
A. Oh, yes. 

Q. Can you express that variation in percentage ? Does the grass vary 10 per cent., 
for instance ? — A. No, I don't think it does. You can notice a great variation now from 
the last two years. Three or four years ago we had more grass than now. 

Q. Suppose there were no cattle on the range, do you think that the variation in the 
climate of each season, or the different seasons, would greatly vary the amount of 
grass ? — A. No, I do not think so. 

Q. Do you think the country is gradually losing its grass? — A. I do. 

Q. Can you express that in percentage, during the time you have known the 
country ? — A. I do not think we have within 25 per cent, as much grass as we had in 
1872. When I took my own range up grass was waist high, and there were no cattle 
in the country then ; now look at the range outside of the section I have fenced for 
my calf pasture. Inside the pasture the grass stands high, but outside of it the grass 
is nowhere near what it "was in '72. 

Q. Then, in your opinion, the stock which is now in the country will gradually 
reduce the grass ? — A. I think so. 

Q. If the present tenure of cattle is maintained, then the life of the grass is limited 
or regulated by the number of the herd ? — A. By that do you mean the ranges are get- 
ting overstocked? 

Q. Yes. — A. I do not think our ranges are getting overstocked. In the old-fashioned 
way we had to gather the cattle all in toward our ranges ; we kept them within ten 
or fifteen miles. Now we allow them to go wherever they please. 

Q. You do not think, then, that under the present system the diminution of the 
grass is going on as rapidly as it did formerly ? — A. No, I don't. If we had kept the 
old system up we sbould not have had any grass at all. There are a great many that 
do not think so. If I wanted you to move, I might tell you that the grass was getting 
depleted. 

Q. Do you think the country — taking the country at large between the Arkansas 
River and the North Platte, and possibly far enough eastward from the mountains to 
reach the limit of the agricultural belt — the grain belt — do you think that the country 
has all the cattle to-day that it ought naturally to carry, or will it do to largely over- 
stock it ? — A. It would not do to overstock. I think the natural increase in the country 
will stock it. 

Q. How soon ? — A. In a very short time. We are increasing every year. 

Q. When would you put a limit for that great belt of territory, after which you 
could not increase safely ? — A. There are a great many moving out, thinking that this 
is done for now. 

Q. What is your opinion ? — A. I should be content to stay there five or six years 
longer. I think my cattle could live. I should not have as fat beef, but I think the 
market will warrant me in staying there. 

Q. As the great cattle industry grows you can afford to sell your younger cattle ? — 
A. Yes. I should not have any beef weighing 1,400 pounds, but 1,150 pounds is a very 
good weight. 

Q. I understand that you do not own the ground of your cattle range; why cannot 
you own it ? — A. I am not allowed to take up but 320 acres, and I cannot afford to pay 
anywhere near the price. 

Q. If the land was sold at figures which left you a reasonable profit in your business, 
would you like to buy it ? — A. Yes, indeed, I would. 

Q. Excluding all purely agricultural land— that is, first, land which needs no irri- 
gation ; and second, that which is in the lines of irrigation — and taking only the non- 
irrigable plains, for what price would you be willing to sell this land if you were the 
government ? — A. Five cents an acre would be enough. Taking it right through it 
ought to go for fifteen cents an acre. 

Q. Could you afford to give that (fifteen centsj for a large tract ?— A. It would 
depend upon how taxes were. I should be willing to pay ten cents per acre, taking it 
in large tracts. 

Q. Standing a 4 per cent, tax ? — A. No. 

Q. What is the tax in your vicinity ?— A. From 13 to 15 mills. I am not certain just 
which. 

Q. Suppose the government should open to settlement for stock-raising the plains 
land in a manner not unlike the homestead or pre-emption acts; of course it would be 
necessary to increase the size of the tract so that the average family taking up that 
homestead or pre-emption tract would be able to live upon it; now, in your judgment, 
how large a tract of the average plains land with proper access to water, would be 



296 PUBLIC LANDS. 

necessary to sustain a family in the cattle business ? — A. Between 2,500 and 3,000 acres. 

Q. You think that 3,000 acres will support an average family? — A. If a man is con- 
tented with a small amount of cattle I should say 2,500 or 3,000 acres would sustain 
his family ; that is, make a living ; he would get nothing ahead. 

Q. And how would that man compare, as to commercial advantages, with the man 
who has 160 acres of good arable land ? — A. I should say, the same ; that is, taking the 
western land, and the crops year in and year out as they are in Kansas, I think 3,000 
acres with cattle would be as advantageous as 160 acres of arable land, or even 320 
acres. 

Q. In your opinion is it either practicable or to the general interest of the stock in- 
dustry that the cattle business should be carried on in a small way by individual own- 
ers, on tracts of 3,000 acres, or by men with large herds who would be able to control 
land enough to carry them? — A. I think it would be better in large herds, for this rea- 
son : A man with 1,000 head of cattle will have to pay from $1.25 to $1.50 per head a 
year. My cattle last year cost 60 cents a head and next year they will only cost me 
45 cents per head. I can take 15,000 head of stock and run them for 30 cents. 

Q. You believe that the advantage of large cattle -raising over small cattle-raising 
would be greater than that of large agricultural enterprises over small agricultural 
enterprises? — A. Yes; I do. 

Q. State any of the advantages that occur to you of large cattle-raising over small 
cattle-raising ? — A. We allow in gathering cattle in the spring and fall 2 men to the 
thousand. A herd of 2,000 would be represented by 4 men, but a herd of 18,000 would 
only require 20 or 24 men. In that way the large owners save. Since stock-raising 
has come to be carried on so extensively, instead of one we now have from five to seven 
" round-ups," and small stock-owners cannot be represented at these places, while I can 
take my men and put one in each place. 

Q. What are the disadvantages of small stock-owners not being represented at the 
different a round-ups "?— A. His cattle are left. 

Q. How left ? — A. Left there at the " round-ups." He loses his increase in calves, and, 
besides, his cattle wander off so that he cannot get them. 

Q. Do you find in practical experience that the disadvantages under which small 
raisers labor lead them to abandon the country or go out of the business ? — A. I do. 

Q. Do you find that they are doing both ? — A. No ; I don't think they are giving up 
the business, but they are moving off to other ranges where they are isolated. 

Q. Is it a fact, then, that the entire cattle territory of Colorado is gradually being 
occupied by the herds of large owners and that the smaller ones are all passing to the 
north ? — A. Yes, sir ; I believe that will occur. I was telling a friend of mine the other 
day that in a few years there will not be more than five herds east of Denver. 

Q. Does not this centralization of capital become a monster monopoly of the plains ? — 
A. In regard to the smaller men moving off, mind you, it is done just as much for 
themselves — for their own gain — as it is for the large men. A smali raiser takes his 
1,000 head off by himself, and instead of getting 65 per cent, increase he goes up to the 
old ratio of 75 per cent, to 90 per cent. He is by himself and his cattle are there where 
he can look after them. 

Q. But is not the practical result to finally hand over to the very large cattle-own- 
ers the entire cattle territory from Texas to British America ? Do you not think so? — 
A. I do. 

Q. Do you consider that a benefit to the people at large ? — A. The people at large 
would derive a benefit from it in the reduced cost at which they could purchase their 
beef. That is where the people would save. 

Q. Have you observed a definite, perceptible change of climate during your resi- 
dence in this country ? — A. I have. 

Q. Has it been progressive since you first came here? — A. Yes. 

Q. In what direction is that change of climate — more or less moisture ? — A. More. 

Q. Are you informed as to whether that apparent increase of moisture is an actual 
increase, or is it due to a difference of distribution throughout the year ? — A. I cannot 
say. 

Q. As a result do you notice any particular change in the vegetation ? — A. That I 
cannot say, as I don't see much of the vegetation. 

Q. You do not perceive a sufficient change in the moisture conditions to indicate 
that the farm belt is ! encroaching westward on the cattle belt ?— A. No ; I do not. 

Q. It i3 not your belief, then, that there is such an encroachment ? — A. I know there 
is an encroachment, because the farmers are trying to raise crops farther westward, 
but I do not believe that encroachment is due to the change in the climate. 

Q. Is it your belief that in Kansas they have reached the limit of successful cult- 
ure ? — A. Yes. 

Q. Has the failure of certain crops led you to that conclusion ?— A. Yes. 

Q. What, in your opinion, considering the interests of the government and that of 
the stock-raiser, is the best way for the government to dispose of the strictly pastoral 
lands ? — A. Sell them. 



PUBLIC LANDS. 297 

Q. You would not welcome the idea of renting for a short period? — A. No ; I would 
not. I do not think anybody would then go to the expense of fencing and making 
other improvements. 

Q. In case the government should throw open for public sale or private entry the 
entire pastoral laud, what method would you advise for preventing non-resident cap- 
italists from controlling the entire country ? — A. I cannot say. That would be a very 
hard question to settle, unless the government recognizes the man who occupies it 
at present and gives to the residents priority to the extent of their occupation. 

Q. I understood you to say just now that it was for the interest of the government 
and the people at large that the stock ranges should be large in this arid district. 
Would it not support a large population if the ranges were small and the farmers were 
allowed to live upon 2,000 or 3,000 acres? — A. No, sir; you cannot divide the land up 
so. The water controls the land. Wherever there is any water, there is a ranch. On 
my own ranch I have 2 miles of running water ; that accounts for my ranch being 
where it is. The next water from me in one direction is 23 miles ; now, no man can 
have a ranch between these two places. I have control of the grass the same as 
though I owned it. 

Q. That is, your homestead controls that water ? — A. Yes, that is it ; my homestead 
controls that water. Six miles east of me there is another ranch, for there is water at 
that place. 

Q. In an arid country like this, where the conditions upon which people can live 
and support their families depend upon the water supply, what right have you to take 
up all the water-front and virtually control the whole country hack of it ? — A. Because 
it happens to come inside of my 320 acres. 

Q. Then you selected your 320 acres with a view to controlling the water-front ? — 
A. Certainly. 

Q. And thus you control the pasturage land back of it ? — A. Certainly. That is the 
way it is all over the West. 

Q. Suppose a law was enacted which would make the water common property and 
provide that the cattle from any range should be allowed to drink of that water, 
would that not be beneficial ? — A. I don't think it would. I think that the water 
accounts now for nine-tenths of the population that you find in the West on our 
ranches. 

Q. Then if one or two are to control all the water-fronts, is not that operating 
against the interests of the country? — A. Well, the way our laws are now, it cannot 
be helped. In regard to homestead and pre-emption, you will find that nine-tenths of 
the homestead and pre-emption claims are simply water-holds. They hold the land 
and the water right. 



Testimony of Suydenham Mills, miner, Leadville, Colo. 

Leadville, Colo., August 27, 1879. 

Suydenham Mills, fifty-two years old, miner by occupation, residence in Colorado, 
testified : 

Under present law placer claims upon unsurveyed lands can be patented, and after 
subsequent township surveys there is no sufficient safeguard against patents for adja- 
cent agricultural claims inadvertently lapping over upon the previous placer patents. 

The present placer statutes of the United States make no provision for dump ground 
or tailings, but the State law requires that each claimant shall confine his dump to his 
own ground. This often works great injustice, as, for instance, where several claims 
immediately adjoin each other the lower parties are in position to stop the working of 
the higher parties by cutting off their outlets. In my opinion the custom which pre- 
vailed in most local mining districts when I first came here, in 1859-60, would furnish 
a correct rule on this point, viz : that each claimant could let loose the dump from the 
flume upon his own ground, and the parties below must take care for themselves of 
whatever reached them by gravitation. 

The experience of all miners will approve the absolute extinction of all State, Ter- 
ritorial, or locabmining laws, customs, records, and districts, and in lieu thereof to put 
the whole business under United States law and under the administration of its 
officers. 

The placer law should be better guarded as to requirements of improvements. At 
present it requires proof of $500 worth of improvements, but does not specify their 
character or extent, upon the ground. Hence a claimant might have $500 worth of 
lumber upon the premises, with which to ostensibly build a flume, &c, and upon that 
secure proof of $500 improvements or expenditures. As soon as his entry was allowed 
or patent issued upon that claim he might haul his lumber to another claim and make 
it the basis of proof of expenditure upon said other claim. I would cut off this oppor- 



298 PUBLIC LANDS. 

tunity for evading the law by strict requirement of proof that the $500 had been hon- 
estly expended in the actual development of the ground. 

I do not know of any case of placer patents for lands barren of mineral, and I do 
not see where occasion for such thing would arise, unless where parties wished to 
obtain some title upon unsurveyed lands, and were willing to pay double price therefor, 
without being put to the trouble of pre-empting same. 

It is possible to take up lodes through the pretense of placer claims, and I think that I 
have known, of such transactions. There would be two plain inducements thereto, 
viz: first, the cost of the land would be one-half; second, the claimants could take 
in a much larger area, which might embrace many lodes. 

In matter of lode claims discoveries should be permitted in any form, whether by 
shafting, tunneling, or drifting. I think that the law as to tunnel claims is too lib- 
eral, and that it should be put upon the same footing of other claims as to right by 
discovery. 

Mill-sites might, by evasion of statute, be made to cover lode and placer claims. I 
can see no benefit in retaining that part of the mineral law. It should be dropped out, 
as it only complicates matters and opens a door for fraud. 

Either a party should be compelled to honestly make double the present annual 
expenditure to hold a possessory claim, or, better still, a locator should be obliged, 
within a limited time (say one year) to prove up and pay for the claim, or else forfeit 
his right thereto. 

A provision should be made for the benefit of the pioneer prospector, who may have 
discovered a lode but be without immediate means to work it. I would suggest some- 
thing like his being permitted, by staking out same with suitable monuments to serve 
as notice to others, and by tiling a declaratory statement with the United States regis- 
ter, to be protected for a very short time in the absolute enjoyments of said discovery. 
I mean protection against intruders in the exclusive right to explore and work within 
the surface ground thus staked and filed upon. 



Testimony of George G. Merrick, mining engineer, Leadville, Colo. 

Leadville, Colo., August 27, 1879. 

George G. Merrick, testified: 

Eeside in Oak Park, Cook County, Illinois, but have been temporarily residing in 
and near Leadville for some months past. 

I have been connected with mining pursuits, more or less, since 1849, commencing 
with lead-mining in Iowa, above Dubuque, and engaging in the capacity of a mining 
engineer in gold and silver mining in Colorado and Utah, and coal mining in Illinois 
and Indiana. 

Before expressing my opinion as to the defects of the United States laws as applied 
to lode claims, it seems to me proper to state that in my judgment there is a wide dif- 
ference between lode claims, as the term is understood in the law of 1872, and what 
I would call contact veins of mineral lying in horizontal layers. In attempting to 
apply the fissure vein or true lode-claimprinciple to the deposit claims in this neigh- 
borhood a large number of lawsuits have arisen, and the prospect is that these suits 
will increase in number and importance until the whole mining interest of this neigh- 
borhood is inextricably entangled in legal proceedings. 

I believe the official practice of filing surveys of lode claims which overlap on the 
surface to be entirely wrong in principle. I think that a claimant should be entitled 
to all that is within the area of his ground, and that he should not be obliged to con- 
tinually defend his rights. 

Whether the top or apex of a vein or lode is construed to mean the highest point of 
that lode or whether it is construed to mean the outcropping of that lode seems to 
me a very material difference. One is peculiarly applicable to fissure veins and the 
other is more particularly applicable to horizontal deposits. As I understand the 
meaning of the word apex, I can hardly apply it at all to contact veins or horizontal 
deposits. A vein may be discovered, for instance, low down in a valley where it is 
perhaps a depressed vein. It may be subsequently discovered two or three miles up 
a mountain, and the point where it passes the crest of some peak, if the highest point, 
is the apex according to law. Yet, in my opinion, the layer on the mountain has no 
more an apex than the layer in the valley. I do not believe, furthermore, that the 
apex or course or direction of the dip can be determined in the early workings of 
veins or lodes. Holding this opinion, Idonotthinkthat the intended rights of a discov- 
erer are properly defined and protected under the existing laws, and I know that very 
important litigations have grown out of the impossibility of determining these very 
points. 



PUBLIC LANDS. 299 

I have not known within my own experience, strictly, of two parallel seams being 
located by different parties and giving rise to contest, but I have in my mind in this 
immediate vicinity a location where such a condition of things may very probably 
exist. If it does exist, the original locator would almost certainly be cut off in depth 
by the later locator. 

I have in my mind some cases in the San Juan country, where I believe that the 
outcrops of the lodes are decidedly wider than the legal width of claims even if we 
take the extreme width of 300 feet'allowed by the United States Government. 

No case hascome within my immediate observation where the outcrops of narrow lodes 
have so deviated from a straight line as to pass beyond the side lines of claims, yet I 
have no doubt that this is not unfrequently the case. For example, in case3 where 
the outcrops have made the figure S they would almost certainly pass outside the 
side lines. 

The practice under the law of permitting lode locations of alleged lodes on non- 
mineral ground works to the disadvantage of the discoverers of true lodes in this way, 
viz : that it produces a great deal of doubt and uncertainty in dealing with mineral 
interests ; I mean that it hampers commercial dealings by throwing doubt upon titles 
or the correctness of all locations. 

Under the present law it is undoubtedly true that B, who locates on barren ground 
a claim parallel to that of A, a former locator, but over the dip of A's lode, can cloud 
the title of A, the discoverer of a true lode, and. put him to the cost and inconvenience 
of an expensive litigation. 

I know of a case where precisely this condition of things exists, and in which I de- 
clined to recommend the purchase of a property otherwise highly desirable from the 
certainty of an expensive and tedious lawsuit attending its development. 

It is, as a rule, the case that a large majority of the discoverers of rich veins, or 
their assigns, are burdened with costly litigation to defend their rights from locators 
in their immediate neighborhood, and the legal attack in such cases is most often 
directed to the portion of the dip of the lode which has passed beyond the exterior 
lines of the surface tract. It is an almost invariable rule in the vicinity of this city 
(Leadville) that whenever the owners of a claim have developed rich, paying mineral 
they are immediately burdened with from one to half a dozen vexatious lawsuits, 
and it is sometimes necessary for them to resort to armed force to protect their rights 
against jumpers, blackmailers, and other depredators. 

I do not think it possible, considering the known variety and complexity of the min- 
eral deposits in rock in place, to retain that provision in the United States mineral 
laws by which locators can follow the dip of their claims outside their side lines with- 
out the danger of provoking litigation. 

I have no hesitation in saying that it is the result of my experience in mining camps 
that the complexity of the State and district laws, rules, and regulations is a product- 
ive source of evil, and that the only remedy for these evils is to place the whole mat- 
ter where it properly belongs — in the hands of the officers gf the federal government. 
They alone should have the power to issue any patent touching the title to mineral 
lands. Although I will not question the honesty of intention of the county or dis- 
trict recorders, their average intelligence and the condition in which their records are 
kept are not conducive either to the correctness or the safety of these valuable 
papers. I may add also that I have known instances where whole books of records 
have been fraudulently destroyed in order to obliterate certain titles. It certainly 
seems to me that the adjustment of controversies concerning mineral lands prior to 
issue of patent should be left absolutely to the officials who are appointed by the 
federal government. 

I think that the mineral lands should be subject to ent^y under some of the legal 
subdivisions of the land now in use by the Land Department. I see no way to pre- 
vent the accumulation of land even if a private entry was restricted to one or two of' 
these legal subdivisions, and I think the matter should be left to the discretion of the 
parties desiring to control the laud. If it is attempted to limit the amount of land, 
which may be secured in this way, whether to twenty acres or to any other fixed quan- 
tity, temptation is immediately offered for perjury, which I would wish to do away 
with if possible. 

The present method of acquiring possessory title is productive of many and very- 
great evils in all mining communities, and it is my opinion that every pre-emptor and 
every person seeking to acquire title to mineral lands of the United States should be 
required to perfect that title within a reasonable time, and it is my opinion that no 
injury will be done to any honest locator by fixing that time so as not to exceed 
eighteen months under any circumstances, and I myself see no reason why the title 
shonid not be perfected within twelve months. In fixing the period of twelve months 
I am governed exclusively by the idea of dealing with extreme liberality with the pros- 
pector or miner who makes the discovery of mineral in the tract of land. No sub- 
stantial injury or wrong would be wrought to any one by requiring the payment of the 
cash upon the filing of the application for a patent with the Land Department. 



300 PUBLIC LANDS. 

I find that it is a common practice in the surveys of mineral lands to wholly disre- 
gard the rules and regulations issued by the Land Department to govern such surveys, 
and that surveyors are in the habit of surveying lot after lot across each other, paying 
no attention whatever to the side and end lines as laid down for an earlier locator. 
These surveyors are paid a fixed price for surveying a claim, and it is, of course, to 
their interest to survey as many claims as possible without regard to prior rights. 
Purveys are made also with the ordinary box compass, and when the final surveys are 
made with more accurate intruments the boundaries of the claims vary in important 
particulars, and lawsuits without end grow out of this shiftless practice. In my 
judgment no surveyor should be allowed to survey a mineral claim unless properly 
deputized by the surveyor-general, and no map of any claim should be made in which 
the lines of one claim cross the lines of another. Respect should be paid to the earliest 
locator, and cross-lines should stop upon touching his side or end lines. 

In my opinion the x^resent land laws operate in the first place to the confusion and 
detriment of mining industry, and secondly to the demoralization of the people engaged 
in mining. Instances have come under my immediate observation where public lands 
are pre-empted for the purpose of robbing them of their standing timber. Lands are 
also patented under so-called placer claims for the purpose of disposing of them as 
town lots, and, in general, in order to secure a large number of mining claims the 
grossest perjury is committed throughout all the mining districts. 



Testimony of Henry Neikirlc, miner, Boulder, Colo. 

Boulder, Colo., September 9, 1879. 
IPublic Land Commission, Washington, D. C. : 

Sirs: In answering your series of questions, I take it that the first contains a typo- 
graphical error. The word " expense " should be " experience." 

Answer 1. I have been engaged in mining for sixteen years, in Colorado exclusively ; 
have prospected from Fairplay on the south to Estes Park or Long's Peak on the 
north, but have done the principal part of my mining in Gilpin and Boulder Counties ; 
have been foreman of several large mining properties, among which was the " Smith & 
Parmelee" property on the Gregory & Briggs lodes, at Black Hawk (in 1864-65), now 
the New York Company property ; also, of the Buell property, at Central City (from 
1872 to 1875) ; have filled almost every position from "dirt-passer" to superintendent 
and owner, and there is nothing about a mine to be done I cannot do. I own an in- 
terest now in two mines of this (Boulder) county, both of which I have had litigation 
over. The Dana or u Hoosier " lode and the Melvina. The litigation on the first 
named extended from 1860 to 1876, and was dragged through local or district, State, 
and national law. 

2. The law itself has the same objection your question has ; it is too vague. " Lode 
claims " is very uncertain. There are so many kinds. The law applies pretty well for 
well-defined fissure veins whose dip is vertical or nearly so, and for them only do I 
consider it good. 

3. I think it a bad practice, but one it would be impossible without great expense 
and trouble to do away with, and that the " end would not justify the means." 

4. The apex of a lode I understand to be that point at which the vein enters or 
©merges from rock in place. The dip or course of a vein can only be approximately 
determined in the early workings. 

5. They are not. 

6. It has. 

7. Never have of same outcrop, but frequently where two outcrops dip or run 
together. 

8. No. 

9. They are not. There is more gammon in this than any one other thing in mining. 
Where it is so wide it is not a vein or lode, and does not run in seams, but lies en masse, 
and is a deposit. 

10. Quite often, especially in a few of the older counties of Colorado where the sur- 
face is limited in width by local law. 

11. To the disadvantage. Just the location will deter others from occupying the 
ground, although it may be a fraudulent location. * 

12. The above question or example is answered every day^ almost and illustrated in 
the southern part of this Si ate, and arises from trying to govern vertical and horizon- 
tal veins by the same rule and same law. What would you think of a law which, 
would allow a man to strike the edge or outcrop of a horizontal coal bank, take up 
1,500 feet in length and hold it for any distance? 

13. Litigation arises from unimaginable causes, but it arises as much from the new- 



PUBLIC LANDS. 301 

ness of the mining country and instability of society as any one cause. Litigation is 
very often commenced to blackmail. The vagueness of the law and the inappropriate- 
ness of it to many cases is very fruitful of litigation. 

14. I think it is in all veins in the primary formation, but not in limestone or por- 
phyry. 

15. I have in two instances, and both were organized in the same manner, to wit : 
A call for a meeting was made by several citizens. Upon meeting the people assem- 
bled elected a temporary chairman, also secretary, when committees on by-laws, on 
boundary-lines, &c, were elected. After the preliminary organization was effected, 
committees appointed, &c, the meeting adjourned for a day or two. Upon meeting- 
again the committees reported a short constitution and by-laws (which was a short 
code), which were passed, upon by the meeting. These laws provided for their own 
amendment. The "miners' meeting" was considered supreme. They usually had a 
president, a vice-president, and secretary, who was ex-officio recorder, who kept a book 
for the record of claims. There was in some districts in this State in very early days 
miners' courts established by the people of the districts, and. a corps of executive offi- 
cers, headed by the president of the district. At present all authority is assumed by 
the State. 

16. The usual method adopted was to stake off your claim; if on a lode or gulch, a 
stake at each end of your claim; if patch or hill diggings, one at each corner, stating 
on your stakes what you claim, and recording with the recorder of the district a cer- 
tificate of your claim. The effect of such a record has been at different times and in 
different districts so various it would be impossibe for me to specify, but in all in- 
stances gave a person the right to possession and enjoyment under restrictions speci- 
fied by law. Generally a person was entitled on a lode to 100 feet in length of the 
vein he discovered, or on which he pre-empted, after some one else had made the dis- 
covery, together with 50 feet of surface, in width, for working the same. 

17. That would depend upon the district law, but I never knew of its being done. 

18. The legislature of this State provided for these records of the various districts 
to be deposited with the county recorder. In one case I had these books were tam- 
pered with, and I proceeded the same as a person would to prove that a conveyance 
or any other paper had been tampered with. I do not think, however, that there is 
any, or at least very little, property held under the district laws or records in this 
State. 

19. I think it is much the best and most convenient way for the initiatory to be taken, 
as it now is, with the county clerks or recorders. Inasmuch as the recorders keep the 
records of all instruments requiring record (even recording the patent after it issued 
by the general government), why not let them keep these also ? The county office is 
of course more convenient in most every instance, and as the recorders are elected by 
the people, and mostly by men who personally know them, it is a rare thing to have a 
poor or unaccommodating one. 

20. I think not. I am well pleased with the workings of that phase of the law. I 
could give more reasons than I could find paper to write upon why mining litigation 
should not go before the land offices. 

21. I would retain much of the present law, but I would make a distinction between 
veins or lodes in the primary formation and all others. I would allow a person to- 
pre-empt, as now, say, 800 or 1,000 feet on a fissnre vein which he has discovered, and 
hold it absolutely, no difference where it went, and sufficient surface for the proper 
working of the same, say 100 feet wide and nothing more. I would not throw in spurs, 
parallel, cross-veins, &c. On all other kind of veins, deposits, &c, I would confine 
Mm to certain boundaries. It is a distinction easily made, and a law framed for one 
kind of vein or lode is not applicable to the other. 

22. Under the present law a person must perform $100 worth of work a year to hold 
his claim, and I think it is better for the country as it is than to force him to obtain 
a patent, which you could not very well do anyhow, as he would probably get a friend 
to hold it for him. 

Yours, 

HENRY NEIKIRK. 



Suggestions to the Public Zand Commission by H. K. Pinckney, Pueblo, Colo. 

United States Land Office. 

Pueblo, Colo., August 22, 1879. 

Dear Sir : Referring to your recent request, and in which you ask me to offer any 
suggestions I may deem proper in response to circular from the Public Land Commis- 
sion of the Interior Department, I will say as follows : 

As you are aware, from your long residence in Colorado and from your experience as 



302 PUBLIC LANDS. 

register of a land office, Southern Colorado, with the exception of a small area of farm- 
ing lands, is devoted almost exclusively to pastoral purposes. The area of this district 
in acres aggregates about 15,000,000, a great portion of which is yet unsurveyed. 

It is no uncommon thing, as you can testify, for stockmen to enter with scrip, and 
under the homestead and pre-emption laws, several springs and water-holes, and by 
so doing control great bodies of land, to the exclusion of others, for the reason that 
without the water the grazing lands for miles are worthless to any one. 

There are instances where stockmen for the better protection of their stock have 
fenced in portions of the public domain. 

To remedy this evil and cause a source of additional revenue to the government, 
these lands should be assessed at what they are really worth, and sold to stockmen and 
others at their assessed value. It would result in the sale of the greater portion of 
our arid lands. It would also in a great measure prevent the unfortunate dissensions 
which now exist between the cattle and sheep men of this country ; for if these lands can 
be purchased at what they are really worth, all of our stockmen and farmers could 
and would own their own ranges, and not infringe on one another's rights as is now fre- 
quently the case. 

Another and greater impending evil would be done away with, viz : the practice by 
stockmen of procuring their herders to pre-empt places and thereafter securing deeds 
from them. This act is virtually in direct violation of section 5392 of the United States 
Revised Statutes. You are aware also that the improvements usually made to secure 
watering places for stock are of a very inferior character, hardly sufficient to hold the 
land, and, although residence is essential under the law, the business in which these 
men are engaged is of such a nature that a full compliance with the law so far as resi- 
dence is concerned is impossible. That stock-raisers must have a range for their stock 
is patent; that very few men will live on a stock-claim the prescribed period is a fact, 
and that they will in time use other methods of obtaining titles to the public lands is a 
natural sequence. I believe that the offering for sale and grading of the arid lands is a 
long-felt necessity for the j)rotection of the interests of our settlers ; it will be a source 
6f revenue to the government ; it will prevent the crime of perjury on the part of pre- 
ernptors, and result in improvements in the way of fencing and irrigation alike bene- 
ficial to the State and country at large. 

I have heard it remarked that a lease of the public lands by the government infracts 
of 1,000 to 10,000 acres for ten years would be desirable, but from conversations had 
with settlers in this section it is evident that they would much rather purchase the lands 
outright, as the rental in ten years would cost more than the land, to say nothing of 
the hard feelings that might be engendered by a "lease to other parties for a greater 
consideration after the expiration of such lease. It might be a greater source of 
revenue to the government, but that is a minor consideration when compared to the 
peace and prosperity of a community. 

I would like very much to make some statements concerning the Fort Reynolds 
military reservation, the Las Animas grant, and the "mineral belt" of this district, 
and will at any time you may desire. 
Very respectfully, 

H. K. PINCKNEY. 

Hon. George M. Chilcott, 

Pueblo, Colo. 

Pueblo, Colo., August 23, 1879. 
Gentlemen : I would respectfully recommend that the suggestions made by Mr. 
Pinckney receive your careful attention, and when you arrive here for trip proposed 
by the stockgrowers' association, I shall be glad to accompany you as one of its 
members. 

Respectfully, 

G. M. CHILCOTT. 



Testimony of W. R. F. Randall, attonwy-at-law, Lcadvillc, Colo. 

W. H. F. Randall, of Leadville, Colo., lawyer in practice, testifies : 
I think the present mining law should bo amended so as to apply to all mineral 
land — a general law — and that the present law tends to vexatious litigation ; and 
would suggest the enactment of a law that the claimant be confined to a square loca- 
tion, with side and end lines defined, beyond which the locator or owner could not go. 
The party who enters upon a claim should be protected while ho is prospectiug it and 
before he strikes the ledge. I suggest that a, general, sweeping law be passed, provid- 
ing for the United States retaining possession of mineral lands as it does of agricult 



PUBLIC LANDS. 303 

ural and other classes up and to the time of patent, and that the register and receiver 
in land districts receive the filings of mine locators, either in person or by deputy, as 
is now done by local recorders under State law, thus preventing fraud in alteration of 
dates of filing claims, &c. ; and that the present law should be amended so that the 
difference between a placer or lode claim or mine be defined clearly and beyond doubt, 
and that " apex of a lode " be expressly defined. One source of trouble at present in the 
surveying of the public lands is the fact that the deputy surveyors return as mineral 
muchland which upon contest (an expense to claimant) proves to be agricultural. This 
results from there being no regulation or method of defining the kinds or qualities of 
lands, and the fact that the deputy surveyors in general are not scientific men and so 
cannot return true character of the lands. Frequently surveyors, because lands lie 
within range of mineral lands on the plats so mark all of them. The timber on the 
public land should be protected by law from waste and destruction, and the power to 
enforce this law should be placed in the hands of the register- and receiver of the dif- 
ferent land districts. At the present rate of destruction in the vicinity of this district 
there will be none left in a year and a half. The present mixed condition of mining 
legislation leads to almost endless litigation. Scarcely a valuable mine in this locality 
but what has been put to heavy expense and damages by reason of jumpers and ad- 
verse claimants for blackmailing purposes. 



Testimony of H. W. Beed, United States deputy mineral surveyor, Ouray, Colo. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1 : 

To the Public Land Commission : 

Gentlemen : I have received your circular and have time to answer but briefly. I 
am a United States deputy mineral surveyor, and reside at Ouray, Colo. ; I have lived 
here since the summer of 1875. 

In this county the greater part of the public lands is in the mountains. We have 
some agricultural land in the valleys and good grazing land on the mesas. 

The distance from the valleys to the highest mountains in this county is so short 
that no general description can be given and no general answer to the question as to 
rainfall, fall of snow, &c. The rainy season is in the months of July and August. I 
have little acquaintance with the agricultural interest. 



In the mining districts the timber is spruce. There seems to be no law under which 
parties can obtain title to timber land in a mineral country. In the neighborhood of 
every mining camp there are many square miles of timber that parties would will- 
ingly pay a fair price for if offered for sale by the government. A law authorizing 
the sale of timber land in a mineral country is greatly needed. Where there are any 
mineral claims they could be exempted or the timber could be sold without giving 
title to the land. There is so little timber in the neighborhood of many camps that 
it would not be just to sell the timber in very large tracts ; twenty to sixty acres in a 
tract would be sufficient. Miners at present have to cut timber off of the public lands 
or stop work on the mines. A large per cent, of the timber in this county has been 
destroyed this year by fire. In many instances the fires have been willfully set by the 
Indians. 

LODE CLAIMS. 

1. I have had five years' experience in this country in mining and mine surveying. 

2. The principal defects in the mining laws that I have noticed are as to what rights 
a claimant has to whatever is within the boundary lines of his claim. The law gives 
to the oldest locator the right to the ore at the intersection of two claims (where two 
claims cross, say, at right angles). It should be more explicitly stated whether this 
means the intersection of the veins or the intersection of the surface boundaries. The 
veins are often but two or three feet wide, while the surface claimed is three hun- 
dred. 

4. The top or apex is generally understood to be that part of the lode that is first 
discovered. A vertical lode has its apex at the surface. As applied to a horizontal 
lode the word apex is a misnomer and leads to endless trouble or litigation, for the 
law gives a claimant the right to follow the lode outside of his boundary lines ; and 
if the lode is horizontal or nearly so, the prior locator controls an endless tract of 
land, and other oona-fide locators have no means of knowing what their rights are. 



304 PUBLIC LANDS. 

5. It is often impossible to ascertain the direction of a vein until it has been exten- 
sively worked. 

9. The outcrop of lodes is often wider than the legal width of the claims as limited 
by local laws. The United States allow 600 feet in width, which is more than ample. 

11. I do not understand that the law allows the location of a bogus lode. If it did 
it would work a positive injury to a dona-fide locator and would discourage legitimate 
prospecting. The law should be very plain and clear upon this point. 

12. It is always possible to make litigation, but I do not think B could acquire any 
rights over A. I never heard of any one succeeding in such a contest. 

13. The discovery of a rich vein is almost always followed by litigation, because 
the law does not clearly define how a man's rights are limited or protected by his side 
lines. 

14. It is necessary to allow miners to follow their vein on the dip in most cases, or a 
mine would have to be abandoned in most cases when a depth of 1,000 feet was 
reached. 

15, 19. But little attention is paid to miners' laws here. It would be a nuisance to 
have the initiation of record title placed with United States officers. To say nothing 
of the hardship of being obliged to travel a hundred miles across the mountains in 
winter to go to a United States land office, it is manifest to any one that the proper 
place to initiate title is where all subsequent transfers have to be recorded — i. e., in 
the office of the county recorder. 

16, 17. Lodes in this district are located in accordance with United States laws, ex- 
cept that in most cases the direction of the lode is given in a very vague manner and 
its locus is not fixed with accuracy. The State law provides for the filing of an addi- 
tional location certificate, which cures these defects without destroying any rights 
acquired under the previous locations. 

18. All of our records of mining titles are made in the office of the county clerk 
and recorder, and a case of fraud in keeping the records is as rare as in any of the 
Eastern States. 

20. It would certainly be well to leave the settlement of adverse claims to the reg- 
ister of the land office or other land officer, if care were taken to appoint able judges 
of law to those positions. Under the present practice of appointment, miners would 
have their rights better protected in a court of law. There is quite a difference be- 
tween deciding a dispute between two farmers as to their rights to a bit of unimproved 
land worth a few hundred dollars and deciding a mining claim that may involve a 
million. 

21. The only amendments that I would suggest to the existing laws are : 1st. That 
a claimant should have exclusive right to all the mineral of all lodes inside of his 
boundary lines. This would give him the ownership of all cross-lodes inside of his 
lines. But he should not be allowed to interfere with another claim that comes in on 
the dip. This may be the intention of the present law, but as it stands it does not 
state clearly whether the ownership of all the mineral belongs to the prior locator or 
only that part that lies at the intersection of the veins. In other words, it does not 
state clearly any difference between the vein and the claim. 

22. I think that after holding a claim for five years a claimant should be obliged to 
patent. To obtain the duplicate receipt for a patent from the local land office re- 
quires from four to five months, and another year to obtain the patent from Wash- 
ington. 

I haven't time to answer in detail all the questions that you ask in an extended 
manner. 
I hope what I have said may be of some slight use. 
Eespectfully, 

H. W. REED, 

Ouray, Colo. 
September 29, 1879 



Testimony of B. A. Southworth, stock breeder and farmer, near Derive)', Colo. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1 : 

Office of Pleasant View Stock Farm, 

Denver, Colo., November 3, 1879. 
Public Land Commission : 

Gentlemen : Inclosed please find answers to such of your questions as come under 
my knowledge and observation. Said answers, so far as relates to disposal of lauds, 
give what seems to me to be the best ineans or way for government to adopt, provid- 
ing Congress deems it best for government to retain control of said lauds until sold 



PUBLIC LANDS. 305 

But it seems to me that the arid lands of Colorado should be given to her, and the 
money derived from the sale to be devoted to distributing the water that now flows 
through her different streams to the Gulf of Mexico, doing no one good, over said 
lands so far as it may go, to make them fruitful, as there is no better producing soil 
in the world than this when once under water and properly irrigated. By storing 
the water in lakes, ponds, and reservoirs when not needed for irrigation, it would con- 
vert large quantities of desert lands into fruitful farms. The undertaking is too 
large for private enterprise. The mining interest of Colorado will never be fully 
developed until her agricultural interests are. 
Yours, truly, 

E. A. SOUTHWORTH. 

1. R. A. Southworth, near Denver, Colo.; occupation, stock breeder and farmer. 

2. About five years. 

3. Yes ; by pre-emptiou and by timber- culture act. 

4. By observation among acquaintances and neighbors. 

5. It will cost me to procure a patent for my " timber culture," by a full compliance 
with law, $5,000 to get the water necessary to irrigate with, aside from the labor and 
expense of planting and cultivating the timber. Under pre-emption or timber claim 
it is impossible for any one to procure a title to the land who is dependent upon what 
he can raise from the soil to procure and pay for the same without means to construct 
a ditch to irrigate the same, and fully nine-tenths of the land cannot be irrigated for 
lack of water. 

6. Yes. Cannot get title to a large proportion of United States lands in this State 
under existing laws. Timber and pre-emption claims, lack of water, homesteads law 
does not give land enough to make a living on at stock raising. If taken by home- 
stead, government should give larger tracts ; if by purchase, lower price. 

7. Most of the lands here are fit for pasturage only ; a little can be yet watered at 
great expense. 

8. General rule. 

10. Should be sold to those who desire to purchase at from 10 to 25 cents per acre 
or given in homesteads of 2,000 acres. 

AGRICULTURE. 

1. Climate healthful ; rainfall slight ; snowfall light also, except in the mountains. 
Water for irrigation is supplied by melting snow in the mountains ; is not sufficient to 
irrigate one-fourth of the land of the State. 

2. Rainfall occurs in the spring, April and May mostly, some years a little in June 
and July. The greatest water supply comes when most needed. 

3. What proportion can be cultivated without irrigation ? None. 

4. With irrigation ? Immediate vicinity, nearly all, with here and there an excep- 
tion, ridges too high to get water on and others too rough and broken, say four-fifths. 

5. Wheat, oats, barley, corn, rye, potatoes, in fact every kind of grain and cereals 
that are raised in this latitude east of us. 

6. To irrigate 100 acres of wheat will take 75 inches of water. 

7. Water comes from the mouutains through the various streams, and is supplied by 
melting snow and springs. One-half of the waters have been appropriated, or there- 
abouts. 

8. Do not think irrigation any detriment to the soil, on the contrary a help when 
properly done ; in proof can show land near here that has grown a crop of wheat each 
year for eighteen years in succession and produced an average of nearly 25 bushels. 

9. Three-fourths of the water in ditches is exhausted in the season ; one-fourth of 
the water is returned to the streams as waste water voluntarily. Farmers, where not 
owning an interest in a ditch, buy water by the inch or by the acre. 

10. Should judge one-half of the water of the State has been appropriated; oldest 
ditch has priority of right under State constitution laws. 

11. Conflicts as to priority are the only ones so far as I know. 

12. At least three-fourths, should judge. 

13. It is practicable to establish homesteads on these lands, or the greater portion of 
them ; should say 2,000 acres. 

14. Yes, and should be limited. 

15. Twenty acres are required to raise one head of beef. About the same on an aver- 
age. There are localities where much less would do, and others where an animal 
would starve on 100 acres. 

16. One hundred head of cattle to the family. 

17 Twenty to twenty-five head to square mile. 

18 Grass not so good fed shorter. 

19. Cattle-raisers to some extent fence ranges, or a portion. It will be done more in 
the future. 

20 L C 



306 PUBLIC LANDS. 

20. Quality of herds would be improved by this practice to a great extent. 

21. Rivers, creeks, and springs. 

22. Five sheep are equivalent to one beef. 

23. It has generally diminished. 

24. Cattle and sheep will not graze profitably on the same ground. 

25. Conflicts arise from sheep coming on to ranges already occupied by cattle men, 
for the reason that sheep eat the grass so close that the cattle cannot get a bite after 
them. 

26 and 27. Not answered. 

28. Cannot find a good many of the corners without surveying the ground. 
Yours, truly, 

R. A. SOUTHWORTH, 

Denver. 



Testimony of Mr. Stevens relative to public-land laws and surveys in Colorado and other places. 

(Vide question 3.) Answer. There is no propriety whatever ; it is the most absurd 
rule or practice that can be adopted by local laws. There is no legislation which pre- 
vents the practice being put in force, however, as the miners can so locate their claims, 
and the rules adopted by them are likely to prevail ; that is, the State laws recognize 
the miners' rules so long as they do not interfere with existing State legislation. 

( Vide question 4.) Answer. That portion of the vein which outcrops within the walls 
of the rock in place, or, in other words, the highest point in the highest line of the 
lode, is the apex. It cannot without absolute exploration ; so that it may safely be 
said that it would cost fully $1,000 to determine the line of direction at the outcrop. 

( Vide question 5.) Answer. They are not. 

( Vide question 6.) Answer. A large preponderance — perhaps 90 per cent. — of mining 
litigation has sprung up in cases of parties who were unable to define the line of direc- 
tion of their lode and cover it with their title. The government law allows 600 feet 
as the end width of the line of the lode ; the local laws and the State laws limit the 
end width of the lode to 300 feet in some counties; while in other counties they allow 
even less. An end width of 300 feet is equivalent to 150 feet on either side of the cen- 
ter of the lode. In Gilpin, Clear Creek, and Boulder Counties the end width of the 
lode is limited to 150 feet ; that is, to 75 feet on each side. Park, Lake, and the south- 
ern counties of this State allow an end width of 300 feet ; that is, 150 feet on each side. 

(Vide question 7.) Answer. I have. 

(Vide question 8.) Answer. I have. 

(Vide question 9.) Answer. They are frequently ; that is, the outcrops of the lodes, 
which are strictly essential portions of their respective lodes and are so considered by 
the law as defined in repeated decisions, are often more extensive in width than the 
limit which the law allows for a claim even if the extreme width of 600 feet be taken. 

(Vide question 10.) Answer. They do. 

( Vide question 11.) Answer. To their disadvantage; in more than a hundred in- 
stances to my personal knowledge. There is no mine which I value, to my knowledge, 
within the limits of the State of Colorado that has not been involved in litigation in 
consequence of that very circumstance, where adjacent lands were worthless for min- 
eral purposes but could be made use of by a jumper to sink a shaft down to a lode 
already developed and then prevent its further development ; the only remedy is a 
costly litigation. 

( Vide question 11.) Cross-question. Have such instances occurred in this section ? — 
Answer. Yes ; more than ten times which I could name in this district. 

Cross-question. Can you roughly state the amount of money which has been wasted 
in litigation growing out of this practice ? — Answer. I should hardly venture to make 
even a rough estimate of the total amount. In my own case I may say that I have 
spent from fifty to seventy-five thousand dollars to protect our lands against jumpers 
who have located on lands too which have been proved again and again to be entirely 
worthless as mining lands. I mean that the lands were worthless except to a jumper 
who could use them to cut our vein of ore and thus secure a mining title. 

(Vide question 12.) Answer. He can ; and his position will be sustained in the local 
courts and also in the federal courts. The case mentioued has actually occurred sev- 
eral times in this State, and the decisions in favor of the subsequent locator have been 
rendered by the highest authority, the judges of the supreme court, Hallett and Miller. 

( Vide question 13.) Answer. They are ; it is— the pretense is— that the claim which 
you own is bounded within your patented side and end lines. The land about you 
being public domain is therefore open for occupation, and every citizen and every man 
who nas declared his intention of becoming a citizen has a right to come outside of 
your side lines and sink a shaft. He cannot touch your lode, but he claims to have 
struck a parallel and overlapping one, and the determination of this point generally 
occasions a costly lawsuit. 



PUBLIC LANDS. 307 

Cross- question. Would it or would it not be wise, in your judgment, to exact of 
every locator affirmative proof that he has really struck a new lode? Answer. I 
would make him prove it by his own affidavit and by two disinterested witnesses who 
should show that he had made an actual discovery. 

Cross-question. In other words, would you exact of every applicant proof sufficient 
to show that he had discovered actual mineral and did not seek merely a chance to 
blackmail his neighbor ? 

(Vide question 13.) Answer. Question 2 (cross). The man should make and prove 
an actual discovery within the meaning of the law. 

Addenda. — (Answer by Mr. Robinson.) In my opinion, some responsible public offi- 
cer should be the person to determine the accuracy of the applicant's claim. The cer- 
tificate of such aii officer is required by the old Spanish domain law. We want an 
officer whom the government can hold responsible to make the examination and report. 

( Vide question 14.) Answer. It is scarcely possible ; locators can scarcely do so with- 
out provoking litigation. 

Cross-question. Could you suggest a practical form in which this provision might 
be retained ? Answer. Such a form might be devised, but I do not believe that the 
people in the mineral regions would ever understand it and abide by it ; it would be 
a failure in so far as stopping litigation is concerned. 

(Note 1.) Mr. Stevens said: "I am clearly of the opinion that Congress has del- 
egated powers to the Terri torial and State legislatures which they should never have 
been allowed to exercise. By reason of this delegated authority, these legislatures 
have been able to interfere constantly with the disposition of the public domain. In 
my opinion. Congress should enact such laws as would enable it to resume full control 
of the public domain." 

(Note 2.) Mr. Stevens said in relation to the status of the mining laws in the States 
lying to the west and northwest of the great lakes: "In Michigan only one case has 
been carried to the Supreme Court in the past twenty-five years where the question 
of title to mining lands was raised. This was a contest between the Minnesota and 
the National Mining Companies. The National Company held their title from a grant 
made by the State of Michigan under the provisions of the school act. The Minne- 
sota Company derived their title under an old land law permitting location and pre- 
emption by authority of the War Department. (This law was passed on the 3d of 
March, 1843.) The Supreme Court ruled that the school land was held by the State 
of Michigan. The action of the War Department in leasing the land to the Minne- 
sota Mining Company was held to be legal by the Attorney-General in his written 
opinion. At the time that the land grant of the school sections was made by the 
State of Michigan to the National Mining Company the government held that the 
grant made by the State under their title to every sixteenth section of land was valid. 
The Minnesota Mining Company claimed that portion of the school section land which 
they had pre-empted and surveyed under the grant made by the War Department. 
The government mineral lands were pre-empted or leased under surveys made by 
Allison. Judge Burt was appointed to carry the meridian lines through the disputed 
district. Then a law was passed declaring that the lands nearest the subdivisions 
should be considered as the lands which were sold by the War Department to the 
Minnesota Mining Company. Where the lines as surveyed by Allison differed from 
the later survey lines the holders of the land were allowed to adjust them to the sub- 
division lines." 

Note. — Addenda. — "The operation of the mineral land laws in Michigan was sub- 
stantially the same as their operation in Wisconsin, Minnesota, Illinois ; in fact, in all 
the northwestern States lying near the great lakes." 

Question A. What is the average expense of procuring a title to a lot? — Answer. 
We seldom get a lot for less than $150. Under existing laws, however, I should not 
recommend any effort to reduce the expense of procuring a title to a lot. It is one of 
our imperfect safeguards against jumpers who annoy us by taking possession of neigh- 
boring lots. If the lot next our productive one is barren, the jumper must pay a con- 
siderable sum for a worthless plot of ground, with the chance also of being worsted 
in his litigation for our productive lode. I would, therefore, increase the price of lots 
to obviate the chance somewhat that a worthless lot may be taken on speculation. . 

Note. — In regard to amendments of existing legislation, Mr. Stevens said : "I would 
recommend that all surveys in future should be made by the United States Govern- 
ment, in accordance with their recognized system of establishing meridians and base 
lines, and then that rectangular lots should be laid off. I would limit all sales of 
government lands in future to lands whose boundaries have been accurately deter- 
mined by government surveys." 

Note.— (Question to be added.) " What resource is there for a mine-holder except 
forcible resistance, if a jumper obtains part possession of his land by fraud and the 
unjust operation of the local mining laws?" 



308 PUBLIC LANDS. 

Testimony of Eugene K. Stienson, practical surveyor, Denver, Colo. 

Eugene K. Stienson, practical surveyor, testified at Pueblo, Colo., August 29, 1879: 
Reside at Denver, Colo. I have had contracts under the surveyor-general of Colorado 
for surveying the public lands. I think the present rectangular system of surveying 
the public lands good, and it should be retained. Its simplicity recommends it to all. 
The present methods of executing the surveys are inaccurate. This results from the 
employment of incompetent people, and careless and injudicious acts on the part of 
competent people. I think that a stone monument at the intersection of, say, four 
townships, when the ground is hard, or a metal or other lasting stake at the same 
place where the ground is soft, would be the best method to perpetuate the surveys, 
or the New York method of " pots and charcoal," or to tie these monuments to some 
natural fixed object. I have frequently made surveys for private parties, settlers on 
the plains. I have found most all the stakes and posts gone, and have been compelled 
to take the field-notes of the surveyor-general and. relocate the tract and place new 
corners. The present price per mile for surveying the prairie townships is now too 
low. The government at present pays $10 per mile for mountains and $6 for prairie 
or subdivision lines. A surveyor in the field has his party on hand and so hurries 
through his work and slouches it, so as to make money out of the contract. I have 
had experience in surveying mineral lands, and I think a square location with end 
and side lines should be adopted. 

One-half of the deputy United States mineral surveyors don't know how to use the 
instruments requisite to do this work correctly. The present method of appointment 
of deputy United States mineral surveyors is bad. At present a person desiring to 
have such an appointment gets the recommendation of three or four prominent poli- 
ticians and then is appointed. No particular attention is paid to his qualifications. 
I was on the surveys for both roads, the Atchison, Topeka and Santa Fe" Railroad and 
Denver and Rio Grande Railroad surveys of the Grand Canon of the Arkansas in this 
land district, where the Denver and Rio Grande ran a line through the canon to the ex- 
clusion of all other corporations. My judgment is that no single railroad company 
should have the right to solely occupy such a natural pass. It should be common to 
all, or if only room for one, then all should use the track with compensation for the 
use to the company building it. The present law that when a deputy surveyor makes 
a mistake in the location of a corner that it is final and shall stand, even though an 
error, should be repealed and the surveyor-general have the right to order its cor- 
rection. I recall an error of a deputy in surveying a township ; in chaining made an 
error of 700 feet in one mile. 



Testimony of James B. Thompson, special agent Interior Department, Leadville, Colo. 

James B. Thompson, special agent Interior Department on timber depredations, 
testifies : 

I reside in Denver, and have been a resident of Colorado for ten years. I am special 
agent of the General Land Office, and my duties are to investigate and report upon 
timber depredations on the public lands, and have acted as such since June 26, 1879. 

In answer to the inquiry what depredations I have observed in this locality I have 
to state that a very large proportion of the timber of this vicinity has already been 
cut in violation of law, and the destruction of timber is very rapidly progressing. 
There are seventeen saw-mills at work, which will cut 5,000 feet on an average for 
each mill daily. There are fourteen smelting works, which consume charcoal made in 
the vicinity to the extent of nearly 40,000 bushels daily, equivalent to 1,200 cords of 
wood. I think that about 300 men are engaged in supplying charcoal, and these em- 
ploy probably more than 2,000 choppers, haulers, and burners. The smelters co-oper- 
ate with the charcoal men, and often build kilns for them. Large quantities of tim- 
ber are also taken for timbering mines, the amount of which is extremely difficult to 
estimate. 

Not only is timber taken for the necessary purposes of mining and building, but 
there is no doubt much waste. Fire is in some cases purposely set to the forests in or- 
der to kill the standing timber. Wood which is dead though still sound is considered 
best for making charcoal, and killing the trees by fire is believed to bring the wood 
into the best condition for charring. In other cases, young trees are selected as yield- 
ing better charcoal than older ones, while the older trees are taken for lumber. In 
cutting trees, therefore, the whole tract is denuded and left bare. Large quantities of 
timber are cut down and left lying on the ground. 

The difficulty arises from the fact that there is no lawful way in which a person can 
acquire title to timber-land, be protected in his rights, and have a personal interest in 
preserving timber and using it economically. There is no doubt that if persons could 



PUBLIC LANDS. 309 

acquire such titles they would gladly do so, and pay a fair price for the land. All the 
land in this vicinity, with the exception of small tracts along the Arkansas, has been 
declared mineral land, and can be acquired only as such. I have reason to believe 
that numerous tracts have been taken up, both as placer and lode claims, for the pur- 
pose of securing the timber on them. They have merely been filed upon without the 
intention of perfecting titles, but merely to hold them long enough to strip off the 
timber. None of the bona-fide mining companies have ever done this to my knowledge. 
Where a number of them have consolidated they have merely claimed the right to hold 
the timber for their own purposes. 

In answer to the inquiry about destruction by fire, I may say that they originate in 
many ways. I think that most of them originate from carelessness in leaving camp- 
fires in the morning. The wind rising toward midday scatters the embers and sets 
fire to thousands of acres. In some.xjortions of the State Indians set fire to the forests, 
partly to drive game, partly to destroy the old dead grass and give the young grass a 
better chance to grow. I have been a frequent witness of this, and also a sufferer by it. 
Under the State laws Indians are liable to punishment for setting fires the same as 
whites. 

The effects upon the general welfare of the country I coneeive to be mainly of two 
kinds. In the first place, the destruction of forests is proceeding far more rapidly than 
their restoration by growth. The amount of standing timber in the State has largely 
and very visibly decreased during the last ten years, and before many years have passed, 
the State will be disforested unless the present tendency is checked. The second ef- 
fect is very serious. The great accumulations of snow, which by its melting feeds the 
streams, are at those altitudes where timber grows most abundantly. During the early 
summer the forests by their shade retard the melting of the snow, and the streams are 
fed gradually and slowly and usually keep up a good flow of water throughout the 
summer. Where the forests are stripped off or burned the snow rapidly melts in early 
summer, the water runs off in large volume, and then the streams dry up. Streams 
which now yield a good body of water for irrigation throughout the summer and pas- 
turage in the lower altitudes would suddenly become dry or so much depleted as to be 
practically useless for irrigating purposes. 

The forests are heavier usually upon the western mountain slopes than upon the 
eastern. The fires also are more destructive on the western slopes, partly because there 
is more wood to feed them and partly because of the prevalent west winds. 

In answer to the inquiry what has been my experience and the results of my efforts 
in carrying out the instructions of the Interior Department, I may say that I have 
found the owners of saw-mills and timber-cutters very indifferent and regardless of the 
possible consequences of their depredations either to themselves or to the community. 
While they profess themselves desirous of acquiring rights to timber, they seem to look 
upon it at present as a kind of spoil sanctioned to them by local practice and have lit- 
tle fear of prosecution. They have apparently the conviction that even if prosecuted 
they will not be convicted, because the local sentiment is entirely favorable to them 
and no jury would convict them. Personally I have nothing to complain of, having 
always received civil treatment and found them willing to discuss the subject. But 
they evidently feel secure against any legal consequences and rather despise the law; 
They argue, and justly, that timber is an absolute necessity, and it is undoubtedly true 
that the greater part of what has been taken has been put to the most necessary uses, 
in a word, the taking of this timber is regarded by them as one of those "necessities 
which know no law." They are undoubtedly sustained by public sentiment. 

In presenting to these parties the terms of compromise which the Interior Depart- 
ment has offered I have met with little response. I have sent notices to about fifty 
different parties and have received acknowledgments from only four. The last one to 
acknowledge it was the most extensive depredator in the camp. He called upon me 
recently and stated that he would confer with others in the same occupation. If they 
agreed to compromise he would join with them, but if they determined to abide a law- 
suit he should do whatever they did. 

I have not brought suit against any of these parties, partly because I have not felt 
authorized to do so, and partly because I think that no means should be omitted to in- 
duce these parties to accept the terms offered by the Interior Department. I think, 
however, that such acceptance begins to look almost hopeless and that a suit ought to 
be brought after waiting a reasonable time. Even if the suit fails it will have the ad- 
vantage of showing the weakness of the law and its practical nullity. 

In answer to the question what remedy I would suggest, it seems to me that some 
law should be passed enabling claimants to obtain directly from the government titles 
to forest or timber land in much the same manner as farms and placers are obtained, 
and solely for the timber upon it. In the mean time, pending the passage of such a 
law, it seems to me that the Secretary of the Interior should make a rule allowing the 
cutting of timber under the supervision of a proper officer-) who should have the power 
to designate what trees should be cut, and to collect a stumpage tax for all trees taken. 
I think the general principle which should be recognized both in legislative and ox- 



310 PUBLIC LANDS. 

ecutive action is this : that the timber-cutters are willing to submit to reasonable lim- 
itations and restrictions in taking timber, and are also willing to pay for the privilege 
a reasonable price, but that any attempt to enforce a sweeping prohibition would be 
futile. It could not be done here without a large armed force. The rule of the Sec- 
retary for the protection of young trees is an excellent one in principle, but unfortu- 
nately it is overborne and rendered a nullity because the present system of which it is 
a part is defective as a whole, and it fails because the system fails. I think that the 
Secretary should issue the rule I have suggested at once, as the timber is disappearing 
in numerous localities at a very rapid rate. 

In answer to the question whether it would be practicable for the government to 
enforce restrictions while allowing a limited use of timber, I would say yes. I think 
the people of the State are sufficiently intelligent to understand the necessity of such 
restrictions to the future welfare and prosperity of the State, and sufficiently law- 
abiding to submit to them if reasonable. I think that they will not be slow to under- 
stand the ruinous effect of disforesting the country, or to understand that persons who 
take timber should have some show of authority for it, and should in equity be com- 
pelled to pay for the privilege and be protected in their privilege when they have 
paid for it. 

In case timber lands were sold by the government the size of the tracts is perhaps a 
matter of no grave importance. If they could be sold those parties who wanted large 
lots would ultimately get them, however small might be the original parcels patented 
by the government. 

I think that so long as the government owns timber land it should be under the 
supervision of government officers. I believe that this would be more satisfactory to 
the people than the absence of all supervision. As a rule I think people would rather 
get their timber honestly and in a lawful way from the responsible agents of the party 
which holds it than steal it. Such a supervising officer should have powers, and de- 
cided powers, to meet the want for timber on the one hand and to protect the rights 
of the government on the other. Such powers are not possessed by the present agents. 
At present the position of such an agent is merely that of a suppliant to men who, 
whatever may be the extenuation, are both technically and really violators of law. 
The expense of such officers would be more than repaid to the government, for under 
their supervision the timber could be sold and bring revenue over and above their 
salaries, whereas at present the government loses its timber and gets nothing except 
abuse and defiance from depredators. 



Testimony of W. B. Vickers, private secretary executive department, 'Colorado. 

State of Colorado, Executive Department, 

Denver, September 19, 1879. 
Public Land Commission: 

Gentlemen : Among the questions which you suggest to the citizens of Colorado 
are one or two which interest me, and upon which I have some "views" and a little 
information. Acting as secretary of the State board of land commissioners for some 
time past, I have been brought in contact with a number of our leading agriculturists 
and stockmen, and have been enabled to judge somewhat how they view the various 
plans proposed for disposing of the public lands of Colorado now lying waste by rea- 
son of aridity. Admitting for the most part that the general government ought to 
receive some income either from the sale or lease of its land in Colorado, I cannot see 
how any permanent benefit can be derived from any disposition of these lands other 
than the present system. It is true that thousands of acres now lie waste, except in 
the important sense that they furnish grazing ground for thousands of cattle and sheep, 
which are adding every year a large total to the taxable wealth of Colorado and the 
country. But this range is valuable only because it is open. It is because cattle and 
sheep can roam at will over these broad plains from north to south and from east to 
west that they can be raised and marketed with profit. To fence a range is to destroy 
its value, unless the tract inclosed is much larger than most stockmen could afford to 
fence, even if the land itself cost them nothing. 

Perhaps this fact, even if admitted, is no argument in favor of furnishing stock- 
growers a free pasture at the expense of the government, while agriculturists must 
buy the land they occupy ; but what better can be done ? The great plains are singu- 
larly valueless for any other purpose. Lack of water will prevent the reclamation of 
any considerable portion of them for the uses of husbandmen, but such portions as 
shall be reclaimed will, under the present system, eventually bring its value in the 
open market. The remainder might bring from 10 to 25 cents per acre if sold in un- 
limited quantities to cattle kings, who could buy up w T hole counties. But the smaller 



PUBLIC LANDS. 311 

operators could do nothing. Even the poor privilege of herding a few head of cattle 
or small flocks of sheep would he denied them. 

To confine stock in a small inclosure, say 2,500 acres, is to invite destruction or com- 
pel winter feeding, which amounts to the same thing. No winter would ever pass 
without seeing the inclosed land covered deep with snow, and if the stock could not 
wander in search of grass elsewhere, it must be fed or die. If the water supply should 
fail within the inclosure, the result would he equivalent. 

Under the existing law much of this land comes into market annually as a conse- 
quence of the demand for water privileges hy small stockmen, and the quantity will 
increase until the valleys of all living streams will he taken up. Coupled with the 
sale of. lands reclaimed for agriculture, this will constitute a revenue with which the 
government should he satisfied. The cash value of the arid lands of Colorado is in- 
finitely less than that of the swamp lands ceded to the older States, and yet these arid 
lands are yielding a continual revenue, directly and indirectly. Unless the lands can 
he ceded to the State, I would suggest no change in the manner of their disposal. 
Respectfully, your obedient servant, 

W. B. VICKERS, 

Private Secretary, 



Testimony of A. S. Weston, attorney-at-law, Leadville, Colo., relative to mining laws. 

A. S. Weston, practicing attorney, Leadville, Colo., testifies : 

The mining law at present requires that the applicant, in person, shall make proof 
of the fact that the plat of the claim and notice of intention to apply have remained 
posted on the claim for sixty days, or practically seventy, ten publications in a news- 
paper being required. The applicant may live in New York or in San Francisco, so at 
immense expense he must appear at the district office to show the above. The law 
should be so amended as to permit this to be done by any competent witness. Two 
brothers, living here, located a claim. Neither one lived on the claim more than thirty 
days each, so neither was a competent witness to the sixty days' posting above set out. 
They gave a quitclaim deed for their possessory right, and then one went to Australia 
and the other to Ireland. The purchasers from them were put to a heavy expense in 
getting the proof from abroad — depositions of facts above set out and local proof. 
Now, if a competent witness, cognizant of the posting of notice above set out, had 
been permitted to make this proof the intention and purpose of the law would have 
been fully carried out, and much vexatious delay and expense been prevented. 

At present, in surveys of the public lands, the deputy surveyors, owing to lack of 
regulation on this point of law, return on the plats entirely too much land in this 
district as mineral. Pre-emption or homestead settlers have the burden of proof by 
the existing law put upon them to show its non-mineral character — this at great ex- 
pense and trouble. The notice of " final proof " now required to be published, posted, 
and proved by law in homestead and pre-emption proving up should be at once abol- 
ished as unnecessary and useless. I knew a case where a claimant came twice with 
two witnesses, at great expense, more than one hundred miles to comply with this reg- 
ulation. 



Testimony of F. D. Wight, Trinidad, Colo. 

Tehstidad, Colo., September 6, 1879. 

F. D. Wight made the following statement : 

I am a sheep raiser in Las Animas County, Colorado. I own about 10,000 sheep, 
which I range in Colfax County, New Mexico. I indorse the statement of Mr. Beattie, 
with this exception : I think he can graze a larger number of sheep in fewer acres than 
I can. He states that it takes 30 acres of land to graze 10 sheep. I should estimate 
that if there was no stock of any kind but sheep on a township of this land, that you 
might keep 5,T>00 sheep one year on it, perhaps in very fair shape, winter and summer. 
I would hardly wish to be limited to the last amount. 

Mr. Beattie. When I referred to 3 acres for each sheep, I meant that it would be 
the minimum amount. 

Mr. Wight. Your range, too, is 55 miles from here on the Dry Cimarron, where the 
pasturage is better. I think the estimate made by Mr. Romero is remarkable. It 
would not apply in Colorado or Colfax County, New Mexico. I do not think the rais- 
ing of sheep and cattle is entirely incompatible with each other. I do not quite agree 
with Mr. Jones about the sheep leaving a bad smell on the ground that is offensive to 



312 PUBLIC LANDS. 

cattle ; a number of cattle come down on my sheep ranch. I do not understand that. 
Mr. Jones. If there had been other water around they would not have come there 
The water accounts for it. 

Mr. Wight. I do not believe that 3,000 acres would amount to anything as a pastur- 
age farm, and would not compare at all with 160 acres of agricultural land. I think 
you could support on good agricultural land a family of ten children easier than you 
could a family of one child on 3,000 acres of arid land. I would not accept of less than 
one-half a township as a homestead for making a living and supporting a family in 
preference to 160 acres of agricultural land, such as is given as a homestead in Illi- 
nois, Ohio, Iowa, &c, and even then if they were sheep I think they would have to 
be highly improved sheep that would shear 5 pounds of wool, and I do not think one- 
half of a township would support over 500 head of them. I do not think the net profits 
would be greater than could be realized from 160 acres of good agricultural land- 
Mr. Archibald. As an illustration of the aridity of the country in which Messrs. 
Jones and Wight describe their ranch to be situated I will say that three men of the 
party of Mr. Deday, who was employed as deputy United States surveyor in running 
exterior lines in the eastern part of Las Animas County, got separated from the main 
party, and after wandering about on the prairie for three days in search of water two 
of them perished and their bodies were afterward found. The third man, who sepa- 
rated from the other two, narrowly escaped death. After wandering two whole days 
and part of the third day he found, water 18 miles from the point where he separated 
from his two companions who perished. After wandering for two or three days more 
he found his party. 



Testimony ofB. L. Wootten, Trinidad, Colo. 

Trinidad, Colo., August 30, 1879. 
R. L. Wootten, sheriff of Trinidad County, made the following statement : 
I am a cattle owner in Las Animas County. I have heard what Mr. Beattie and 
others who preceded me said, and I fully concur with them. I think that there is no 
doubt that if this land was sold out to the cattle owners as people are able to buy it, 
it would tend to make this community permanent and quiet. I do not think this coun- 
try is adapted at all to agricultural purposes. The wealth of the Territory lies in its 
stock. 

There is a great deal of trouble on account of men going on one another's ranges by 
reason of overstocking. I have only a few cattle, but I should prefer to buy land for 
my cattle than to have other people come on my range. Then, too, if I owned the land 
I could have just the kind of cattle I liked. I purchased 10 head of bulls at a large 
price, but I found that my neighbors received more benefit from them than my cattle 
did. It is certainly to the interest of the country that these questions be settled as 
speedily as possible. 



Testimony of Carl Wulsten, Bosita, Custer County, Colorado. 

The questions to which the following answers are given will be found on sheet £bc- 
ing page 1 : 

Rosita, Custer County, Colorado, November 1879. 
To the honorable the Public Land Commission, Washington, D. C, P. O. Box 585 : 

Gentlemen : Referring to your printed circular, I respectfully submit the following 
answers to your interrogatives. 

CARL WULSTEN, 
Civil and Mining Engineer and United States 
Deputy Mining Land Surveyor 

1. My name is Carl Wulsten, Rosita, Custer County, Colorado, civil and mining en- 
gineer, practical miner and mine owner, and United States deputy mining land sur- 
veyor. 

2. Ten years by the 21st of March, 1880. 

3. I have sought to acquire title to the Bunker Hill mine (official survey No. 63, min- 
ing district No 5) under the law of May 10, 1872 ; and I am seeking to acquire title, 
also to the Lexington mine (official survey No. 76, mining district No. 5) under the 
aame law. 

4. None of any consequence. 

5. I do not know, not having had any experiences. 



PUBLIC LANDS. 313 

6. Yes. I have seen men obtain title to agricultural lands by pre-emption who never 
lived upon the land. I know of parties having entered whole sections of land and ob- 
tained undisturbed titles thereto who never lived one day upon it, but most probably 
hired men to claim, file, and prove up, they furnishing the money to do so. I filed upon 
160 acres of land, upon which I lived, with my family, in 1870 ; filing was made in 1871, 
and another man filed right over me and upon the 40 acres upon which my home stood. 
I was too poor then to contest and had to give it up, and took a span of horses from 
him as a compensation for my improvements or get nothing. There is a hole in the law 
which is too easy for the wealthy and scarcely a protection for the poor settler. My 
idea is, that the proving up of actual residence ought to be made more stringent and. 
more definite. Affidavits are had cheap, and the first filing ought to be made more 
evident as to actual possession and virtual rights in the premises. Proofs are not suffi- 
cient as they are required now. Rich corporations and individuals can now obtain far 
too easy parts of the public domain. Actual home and settlement ought to be the 
only condition of obtaining title. 

7. The conformation of Custer County is mountainous, with high plateaus of graz- 
ing lands, well- watered meadow vales, and heavily timbered mountains. About one- 
tenth part is agricultural, three-tenths pastoral," and six-tenths timbered mineral 
lands. 

8. Agricultural lands should be all such lands which are, first, under natural irri- 
gation, by reference of its being below the water-courses of the mountains in level ; 
in other words, lands which are moist enough for self -irrigation ; secondly, all such 
mesa or bluff lands which can be irrigated by means of open irrigation ditches and 
not too high in its altitude above sea level as to be beyond the limits of the produce 
of small grains or tubers, altitudinally considered. Grazing lands ought to be consid- 
ered all lands which cannot be irrigated at all, not being timber land. Timber lands 
ought to be considered all such lands which grow sufficient timber to be considered 
forests. Mineral lands ought to be considered all such lands showing transition rock, 
volcanic, or even plutonic formations 

9. The rectangular system of parceling surveys, as used by our government, is, in 
my opinion, the most practical and efficient of the world. Yet the execution of such 
parceling surveys is not perfect. The system of making the surveys of the public do- 
main, by letting contracts for either surface boundaries of townships or for subdivis- 
ion of such townships, is, in my estimation, wrong and the cause of an altogether 
imperfect result. The surveyors-general of the several States and Territories have 
the letting of all such survey contracts. It stands to reason that if such surveyors- 
general are not men of austere principles they will always have hordes of needy friends 
who want contracts. They may even make the letting of survey contracts a source 
of income themselves. It is beyond a doubt in my mind that every contract let up 
to date throughout the United States has been obtained through political favoritism. 
Politicians get these contracts for or in copartnership with land surveyors. The sure- 
ties are the partners in the contract, and the poor, needy surveyor goes out upon his 
contract and rushes it through in seven, eight, nine days, when twenty-one to thirty 
days ought to have been used for such contract ; for the survey6r has to divide with 
his copartners or sureties, and may have to pay an assessment to even the surveyors- 
general. What is the consequence ? The subdivisional survey is (if made de facto at 
all) made in a terrible hurry and not correct, not even nearly correct. I have sur- 
veyed all over this county for the last nine years. I have taken the official field- 
notes of townships and retraced the section, base, or range lines. In township 22 
south, range 72 west (Silver Cliff)? I have found but nine section corners of the in- 
terior section corners (not considering the surface boundary lines at all), and not 
found sixteen of them, and scarcely found any one-fourth corners at all. Now, this 
township was reported grazing land, when if the surveyor had made a de-facto sur- 
vey he would have been able to find mineral in section 16 of the township. The 
utmost care shall be used by such surveyors, according to the instructions of the In- 
terior Department, and so much " as to satisfy the utmost curiosity," referring to the 
existence of minerals, fossils, and natural curiosity. If this township 22 south, range 
72 west, had been surveyed de facto, why the contracting surveyor would have found 
lots of natural curiosities in section 16, which has shown obsidian, agatized geodes, and 
many natural curiosities of such note as to attract even the utmost curiosity of the cow- 
boys'of the region ; yet not a word of such natural curiosities, minerals, &c, appears in 
the official field-notes of Major Oake's contract of subdivisional survey of township 22 
south, range 72 west. Why is that ? I am satisfied that only those corners of this 
township were laid where the then just made settlement of Wet Mountain Valley 
might seek to build fences bv and near Grape Creek. Why can I find section corners 
for sections 5,6,7,8; for 7,8,17,18; for 16,17,20,21; for 17,18,19,20; for 19,20,30, 
29 ; for 20, 21, 28, 29 ; for 30, 29, 31, 32 ; for 28, 29, 32, 33 ; for 28, 27, 33, 34 ; and why not 
any others ? But the township is arid lands, as reported, and the whole balance of the 
contract was made on paper and thus accepted. Such condition of affairs ought not 
to be. In other townships of this county I find miles to contain 83.58 chains, in- 



314 PUBLIC LANDS. 

stead of 80.58 chains as per official field-notes. This refers to the south base line of sec- 
tion 7, township 21 south, range 73 west of 105th principal meridian. On north base 
line of this section 7 I find 82.03£ chains, instead of 79.20 chains as per official field- 
notes. Why ? Because contractor never closed the last or west section run to west 
boundary, but just run to one-fourth, laid the same, and saved himself the other one- 
half miles runs. Why ? Because he could not do it and exist. His contract money 
would not reach. He had probably to give one-half of the sum paid by the govern- 
ment to his copartner and surety, who obtained, through his influence with the sur- 
veyor-general, the contract, and who had probably even to pay a royalty on the ob- 
tainance to the surveyor-general. And thus I could state dozens of cases, which prove 
the system wrong and working detrimental to the interests of the government. My 
idea of the system as it ought to be adopted is : The General Land Office should have 
competent surveyors, who should only obtain their appointment after passing the 
necessary examinations in their profession for each land district, who should be sala- 
ried men and under supervision of expert superintendents, and who should only be 
employed for the survey of the public domain in its right-angular system, and the 
now existing contract system should be emphatically abolished once and forever. 
The competent surveyor, who has passed his government examination, should be re- 
tained in the services of the department so long as he fulfills his duties faithfully, or 
until his death. Thus a faithful servant is secured and the surveys of the public do- 
mains are made right and correctly. Even his surveying staff of assistants ought to 
be salaried men, and thus become perfectly drilled in their respective duties. These 
government surveyors should also be timber inspectors, whose duties it should be to 
watch over the preservation of the forests in their respective districts, thus insuring 
the preservation of our most valuable forests, making depredations upon the same 
almost impossible, having by means of his acquired local knowledge of his district 
also become perfectly acquainted with the quantity, locality, &c, of the forests, being 
able to at once note inroads upon the same, and enabling the prevention of destruc- 
tion of them. The contracting surveyors of to-day have and take no interest in the 
township they survey. They rush through their contracts and vanish; do not care to 
report anything except their hastily constructed plats and field-notes, and do no good 
to the government. 

AGRICULTURE. 

1. The climate of Custer County is a generally moderate one. The mean tempera- 
ture of May, June, July, and August, at noon of each day for eight years, was + 84 de- 
grees Fahrenheit ; of September, October, April, and March, at noon of each day for 
eight years, -4- 67.5 degrees Fahrenheit ; of November, December, January, and Febru- 
ary, at noon of each day for eight years, -{- 30.5 degrees Fahrenheit. (Rosita as point 
of observations.) The observations were made upon the south side of my house 
and open to the influences of the sun, but sheltered from the immediate sun rays. The 
hottest observation was -f- 91 degrees Fahrenheit, the coldest -f- 7 degrees Fahrenheit. 
The days are uniformly mild, the nights uniformly cold. The summer is dry, except 
during the rainy season from May to end of June and from end of July to end or mid- 
dle of September. Generally the rains of May are gentle, those of July and August 
ferocious and emerging from terrible thunder storms. Up to December the weather 
is bracing and fine, when with the beginning of the new year snow storms are the 
rule. The average snowfalls are about 6 inches. The average moisture during the 
summer season is 14 inches. Custer County has but one-tenth of its area of farm 
lands, which are either self- irrigative or are easily irrigable by open canals. 

2. Answered at 1. The most rainfall comes rather late for the crops generally ; some 
seasons in May and June, and timely. 

3. One- twentieth part of the tillable land proportion. 

4. Nineteen-twentieths part of the tillable land proportion. 

5. Wheat, rye, barley, oats, and potatoes. 

6. Twelve cubic feet of water per' minute, or 17,280 cubic feet in 24 hours, equal ro 
57.24 tons of water (at a velocity of 3 miles per hour), will duly irrigate 100 acres of 
land for wheat, oats, barley, and rye in this county; half of that amount is only neces- 
sary for potatoes. 

7. Grape Creek and its tributaries in the west part of the county, Hardscrabble Creek 
and its tributaries in the east and northeast part. 

8. The tillable subsoil of the agricultural region of this county is formed of porphy- 
ritic ddbris in the western portion of the county, and, being loose and porous, is barren if 
not irrigated by either rain or artificial irrigation.. So soon as irrigation is resorted to 
it becomes very productive and strong in its results at germinative power. Irrigation 
does not injure the soil at all; but in every instance under my observation and experi- 
ence increases fertility. On Hardscrabbie the soil is made of granite and sandstone 
debris, and irrigation seems to act also very improvingly upon the soil. Wheat does 
ripen up to 7,500 feet ; beyond that the seed has very little albumen and less starch and 



PUBLIC LANDS. 315 

•will not make flour. This can also be said of rye, oats, and barley. Potatoes ripen 
here as high as 8,500 feet. 

9. 
quired by statute. (See Colorado laws.) 

10. All taken up with homesteads or under pre-emption claims under the United 
States land laws. 

11. No conflicts to my knowledge, except where some foolish men were determined 
to drown their crops, for fear their, neighbors might receive some benefit from the 
water, which actually did their crops' harm by overuse. Generally settled by an hour's 
vociferation and much gesticulation. 

12. About one-thirtieth part of the county. 

13. No. No man can pasture cattle, sheep, or horses except he has water, and that 
is taken up under pre-emption or homestead as 160 acres, and he pastures in the neigh- 
borhood of his water. 

14. Yes. These lands should be limited to 160 acres. 

15. Ten to fifteen acres. I do not know. 

16. Ten head. 

17. About 150 head. 

18. It has held its own during the nine years of my residence here. 

19. No. No. 

20. No. 

21. Springs and creeks. 

22. Ten. 

23. Diminished. 

24. No. Cattle won't eat grass over which sheep have grazed. 

25. Deadly feuds and killing of sheep by cattle men ; but lately none of these quar- 
rels have occurred. 

26. About 4,000 to 5,000 sheep ; about 120,000 head of cattle ; sheep in herds of from 
300 to 1,000, Cattle roam at large and are not herded, and are only rounded up every 
spring, calves branded, and unbranded cattle sold at auction, and thus the business is 
regulated. 

27. I suggest to repeal the pre-emption law and only leave the homestead law in 
force. 

28. Yes, in some townships there is very great trouble, as there are none to be found. 
I find but very, very few instances where corners are witnessed by blazed trees or rocks 
in place; I find no lines chopped through and blazes made to indicate where the lines 
have been run. I find very, very seldom the corners of such dimensions as the instruc- 
tions to surveyors- general from the Commissioner of the General Land Office require; 
ditches and mounds I find almost none. Even township corners are not set according 
to these instructions, and the surveys are lamentably poor and incorrect and uncon- 
scientiously made. Cause, the contract system, in my estimation. 

TIMBER. 

1. One-half of the area of the county. It consists of pine, fir, larch, hemlock, scrub- 
oak, aspen, cottonwood, pinon-pine, cedar, wild cherry, and willow. 

2. None whatever. 

3. By sale at $2.50 per acre. And give a man 80 acres of timber if he will buy 80 
acres of timber and clean it out and foster and cultivate it all properly. After five 
years, on proper evidence, give him a title to the 160 acres on paying $200 for the whole. 
That man by using his 160 acres of timber properly will have almost a fortune in his 
160 acres of such preserved and fostered timber land in this mining region. Further, 
if a mine owner applies for a patent to his 10.3-acre mining claim, give him the right 
to apply with it for 5 acres of timber land (non-mineral) as lot 3 to his mining claim 
(lot 1 being his mining claim, lot 2 being his mill site, and lot 3 his timber site for min- 
ing purposes), at $2.50 per acre. Thus mine owners will foster their timber and try to 
preserve it for their mining purposes, and our forests will not be devastated. 

4. No. 

5. Yes ; undergrowth of from 2 to 10 feet grows 8 inches per season of 12 months, but 
much becomes stunted from growing too close and smothering the more tender trees. 

6. Carelessness of hunters and campers, of letting their camp-fires run out after leav- 
ing the place of the camp-fire. Indians, principally, who fire the forests to drive game 
out. Prevent the fires by hanging every man who can be proven to fire our forests. 
The people here have punished depredators, in several instances, severely. The extent 
of these fires has been alarming. This summer I estimate that at least 50 square miles of 
timber, valuable beyond estimation, has been scorched or totally destroyed by these 
fires in this county alone. 

7. Pass alaw that not a railroad tie can be cut from government land. The tie- cutters 
waste more timber than they use. We miners and our farmers are very careful of the 



316 PUBLIC LANDS. 

timber, as we know its value to ourselves. Prohibit all cutting of government timber, 
facilitate the purchase of timber lands as above stated, and have timber inspectors in 
every district to protect government timber. 

8. They cut where they find timber they want. Whoever cuts a tree is the owner. 
If he does not take it away the next team loads it up and carries it off. 

9. The United States district land office officials are generally too lazy to execute their 
office work. They would not raise a hand to protect the government's timber. Men of 
energy and action needed there, not political drones. 

LODE CLAIMS. 

1. I have had eleven years' experience in mining — in California 1849 to 1855 : in Colo- 
rado 1873 to 1879 — six years in mine surveying; none in mine litigation. I have surveyed 
over 500 location surveys, over 200 mine surveys, and some 18 official surveys for United 
States patents. 

2. A mining (lode) claim, after being properly located, should be inviolable as to its 
surface boundaries. No man should be allowed to survey a cross or other claim over it. 
Make the surface boundaries of 1,500 by 300 feet inviolable. Give the miner the positive 
right to follow the dip of a vein, lode, or crevice, to the center of the earth for 1,500 feet. 
Make it peremptory that the right of location only begins at the actual discovery of a 
mineral-bearing vein in place, and give no man the location privilege if he has not dis- 
covered a dona-fide lode. Or abolish all this and give a man 10 acres of mineral land in a 
right-angular square piece of ground, and allow no other man to go inside of that square, 
but limit every man to ten such squares in every mining district, and make him discover 
mineral in paying quantities on one square before he is allowed to take up the second. 
Or make him put down a 50-foot shaft before he can take up another square of 10 acres of 
mineral land. Make him record the square at the date of his location, or thirty days, 
and make him put down four or eight stakes to define his boundaries, and keep him in- 
side of his boundaries perpendicular. Make him prove up two years from location or 
abandon, paying $5 per acre and proving $500 worth of permanent improvements. 

3. I would not allow the present official practice of filing surveys of lode claims which 
overlap on the surface. The Plata Verde lode claim (official survey No. 52 A), Hard- 
scrabble mining district (mineral district No. 5), Custer County, Colorado, was a oona- 
Ude location, made September 2, 1878, by William J. Robinson, surveyed and recorded. 
Eich mineral found and a mine worth millions uncovered. I made the official survey. 
The Ducktown claim was located before the location of the Plata Verde was made, but 
no earthly show of a speck of mineral ever was found in the hole, which they called the 
Ducktown, and which was in solid country rock of the commonest granite. The Duck- 
town was sunk 10 feet and no farther. The Plata Verde expended thousands of dollars 
upon development, applied for a United States patent, and at the last week of its ten 
weeks' advertisement is adversed by Ducktown on 1.27 acres of area in conflict. This 
is what I call an outrage, a blackmailing scheme of the worst kind. No ; if the law was 
distinct in this instance this shameful practice would never prosper, and less litiga- 
tions be possible. 

4. Where the mineral-bearing crevice matter is first met, either on the surface or, as in 
blind lodes, underground, but wherever it is met, there begins the apex. No, not al- 
ways. Apices are often shattered by slides, displaced by subsequent upheavals, or de- 
ranged by other causes, so that the dip or true course can only be ascertained by consid- 
erable sinking, drifting, and crosscutting. There should be a government mine in- 
spector for every mining district, who should be arbiter in such cases of apices, &c. ; 
whose duty it should be to see that mines are worked safely, and are not in dangerous 
condition to life and limb, and that they are properly ventilated, &c. 

5. Yes. For a prospector has no business to locate his claim and stake his surface 
boundaries until he is certain of the general course of his vein, lode, or deposit. 

6 No. 
7. No. 



9. No. I never saw an outcrop of 300 feet yet. I do not believe there is one in exist- 
ence anywhere. 

10. No. Not if a man prospects the outcrop well, opens it out in several places first, 
before he finally locates his surface boundaries. 

11. Yes. It should not be tolerated. 

12. No. If A knows what he is doing and B is a just man. Scoundrels will do any- 
thing. No instance under my own experience. 

13. No ; not to my knowledge. 

14. Yes ; decidedly. I would follow my dip to China if I could without fear of trou- 
ble, provided I had a good and true vein. 

15. Yes. Hardscrabble mining district at this place, by about twenty men, all min- 
ers but two, merchants. President and secretary to preside over deliberations and 
keep the minutes of the meetings. No books were kept. Records went to the County 
Clerk of Fremont County then. 



PUBLIC LANDS. 317 

16. All was done under the act of May 10, 1872. 

17. Yes. If found erroneous, or if abandoned or vacant ground was to be added to 
previously located lode claims and other parts thereof were to be abandoned without 
detriment to other parties. 

18. No. 

19. Yes, decidedly ; for all local records cannot be made better as if placed with the 
United States land officers. But a location record should in all cases be kept by the 
county clerk and ought and should be exact as regards the specific locus of the discov- 
ery made. 

20. Yes, under all circumstances. 

21. I have suggested my ideas. Ad. 2. 

22. Yes. The limitation should be five years, not more. 

PLACER CLAIMS. 

1. Three-eighths of the whole area of county. The nature of oui mineral deposits 
is volcanic. Veins, ledges, crevices, lodes hold the deposits. As this region has evi- 
dently suffered several volcanic eruptions, the surface of our fissure veins and lodes 
are displaced, altered, and so much disturbed as to appear to be mineral-bearing depos- 
its of irregular surface character, but permanent and continuous developments will 
ultimately prove the appendages, apices, or surface residues of true fissures all over 
this region. 

2. Yes ; I see it working practically every day ever since 1872, and am almost hourly 
consulted upon some of its questions and merits. I have made most of the locations in 
this region, and now am intrusted with most of the official surveys. I have mentioned 
above my ideas in regard to overlapping, &c, which I hold to be necessary of altera- 
tion. 

3. About three months and about $250 by patent, without contest. Have not seen 
the workings yet with contest. 

4. Have none. 

5. Yes. Not exactly defective, but loose. 

6. The placer claim ought not to exceed 10 acres, and no individual co-operation or 
corporate company ought to own more than ten acres. Give more people chances to 
develop the placer resources. Let companies buy from locators, but do not open too 
many doors for already rich people to gobble up all the country at once, because they 
are able to do so under the existing laws. The great maxim of our republican form 
of government, that of the people, to be " a government of the people,"' ought to guide 
our legislation in all its most minute details. Our enormous mineral resources should 
be principally for the people, not for capital. Capital is able, labor unable. Now 
legislate so as to ennoble labor without becoming subservient to the already almighty 
dollar. Give small lots to many and thus alleviate the people without injuring capital. 
The condition of placer claims to-day is such that any number of persons can gobble 
up a whole valley under the placer-claim section. They can easily insert wash gold 
in a hole and thus call it a placer ground and take up all the river bottoms, canons, 
&c, for no other purposes but for its water-power and town-site purposes, the placer 
pretense being but the excuse. Make each locator of 10 acres of placer prove it to be 
continuous placer ground. Make him work it at least three months out of every year 
and prove such work, and make him prove up finally within three years of location for 
title. 

7. I cannot give instances, but I know that valuable non-mineral lands have been 
located and titles obtained under the placer clause by men which were solely obtained 
for town-lot speculations. 

8. No. 

9. No. 

Eespectfully submitted by 

CARL WULSTEN, 
Civil and Mining Engineer, Miner, and Mine Owner, 
and United States Deputy Mining-Land Surveyor at Eosita and Silver Cliff. 



Testimony of James C. Boyles, farmer and cleric of the district court in and for Hutchinson 

County, Dakota. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1. 

1. James C. Boyles, a farmer, and clerk of the district court in and for Hutchinson 
County, Dakota. 

2. Five years. 



318 PUBLIC LANDS. 

3. I am holding a homestead and timber claim. 

4. I am clerk of the district court and have that advantage. 

5. To contested claims it costs about $20, and the time is sometimes over a year to 
get it canceled, and I think that in a contest case it should be canceled at once at the 
local land office, and thereby save delay, and let it be open for entry, say, in thirty 
days, if an appeal is not taken to the General Land Office in that time, and the con- 
testant should have, say, fifteen days after canceling to file, and if he does not enter 
it in that time, it be open for entry by anybody. It would be a great saving of time, 
and cause these abandoned claims to be settled upon. 

6. A party should have the same right to file before the clerk of the court that he 
has at the local land office, and not have to make actual settlement before he can file 
before the clerk. It would save a great deal of time and inconvenience. If they have 
a right to file before a clerk at all they should have the same they have at the land 
office; and there should be more stress upon the amount of improvements made upon 
a homestead, and not so much about the continuous residence. Say, for instance, a 
single man comes to the country and has no team and nothing to get one with ; it is 
impossible for him to settle down on a piece of wild land, and having no team to work 
with, and make a living ; but if he could leave his claim and work for some one to do 
some breaking for him and earn money to build a house with, and not be compelled 
to stay on the land all the time, he would have a chance to get himself a farm. But 
as it is the law is to help the poor man as I understand it ; but as he is obliged to stay 
on the land continuously it defeats the intent of the law ; for a man must have at least 
$400 or $500 before he is able to go upon a wild piece of land and make a living the 
first two or three years. If the law would compel him to break five acres and build 
his house the first year, and the second year cultivate that five and break five more, 
and the third year cultivate that ten and break five more, and by the end of the third 
year must move on the land and live thereon continuously the last two years, and 
break five acres each year and cultivate the other ; so at the time for final proof he 
must have at least 25 acres under cultivation, a house, &c. — say the whole improve- 
ment must be worth at least two or three hundred dollars — in order to prove up on 
the tract. That would give the poor man a chance for farms to be opened up ; and that is 
what is needed. I hope you will inquire into the matter and get the opinion of others 
upon this subject. I know of a number of men in my county that have done with their 
homesteads as I have stated, and now reside upon and have good farms opened, and 
spent all the money they have made on the land ; but as they did not and could, not 
live on the land the first two or three years will fail to obtain a patent therefor ; and 
yet have farmed it every year, and spent all they have earned upon the land ; and 
some of them have now $500 worth of improvements upon the land ; and it is an in- 
justice for them not to obtain a patent for the lands. 

7. Agricultural and pasturage. 

8. By giving one man a certain amount of territory to report on. 

10. The present is good enough, making the requirements on pre-emption and home- 
steads, making them open up some of it, and letting them have until the third year to 
move on the lands ; making them open up more of it and not allowing them to be off 
would be impossible. 

AGRICULTURAL. 

1. Have plenty of rain. 

2. Summer. 

3. All of it. 
5. None. 

13. Yes ; only giving him say one section. 

15. Could not say. 

16. Could not tell. 

18. Increased. 

19. Cattle are herded. 
* 21. Plenty. 

28. Yes ; the stakes are burned out and the lines are in all conceivable shapes j should 
be resurveyed and the lines straightened. 

TIMBER. 

1. We have but little timber ; none to speak of. 

2. Cottonwood mostly ; grows very rapidly. 



PUBLIC LANDS. 319 

lestimony of William M. Cuppett, Canton, Lincoln County, Dakota Territory. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1. 

In reply to interrogatories received from Public Land Commission. 

1. My name is William M. Cuppett. I reside at Canton, Lincoln County, Dakota Ter- 
ritory ; am a wheelwright by occupation. 

2. I have resided in this county nearly twelve years. 

3. I have obtained one half-section of the public lands, one quarter-section under 
the pre-emption law and one quarter-section under the homestead law. 

4. I have been clerk of the district court of this county since January, 1871, and have 
given some attention to locating parties on the public domain ; also, making out entry 
papers and final-proof papers under the pre-emption and homestead laws. 

5. Five and one-half years is the average time taken to acquire title under the home- 
stead law. Some, however, make final proof immediately after a residence of five 
years, while others reside on the homestead for seven years. About two years is the 
average time taken to make proof and payment under the pre-emption law; however, 
a majority of the first settlers of this county under this law, owing to the great dis- 
tance to markets, &c, after living on their pre-emption for several years, changed to 
homestead, and therefore have lived on the same tract of land for as long as nine 
years. 

6. In my opinion, the pre-emption law is defective in this : Section 2261 of the Re- 
vised Statutes prohibits any person who has filed a declaratory statement from filing 
a second. I believe it wouid be just and equitable, where parties have changed their 
pre-emption into a homestead entry, to allow them to make a second declaratory state- 
ment for other land and perfect title the same as they could have done on the first. I 
have but little fault to find with the homestead law as it now is. In my opinion, 
however, when a party brings a contest against an entry he should have privilege to 
file his application to enter the land, and in the event of the cancellation of the entry 
under the contest the contestant may then perfect his own claim. In many instances 
contestants have been unjustly beaten out of the land after having successfully pros- 
ecuted the contest to the final cancellation of an entry by persons who have not a dol- 
lar's interest in the land. If this law was changed as I have suggested, it wonld not 
only be justice, but I believe it would have a tendency to bring about a more strict 
compliance with the spirit of the law by the settler. 

7. The lands in this section are gently undulating; the soil black sandy loam, with 
clay subsoil. These lands are excellent for either grazing or agricultural purposes. 
The lands in this county are all occupied and are used by the settlers chiefly for the 
purpose of agriculture. 

9. I believe the present system of surveys for agricultural lands very good. 

AGRICULTURE. 

1. The climate is a very pleasant one, and, as a general rule, has a sufficient amount 
of rain to grow all kinds of crops. The exception, too dry. In my experience, how- 
ever, I have known two seasons with too much rainfall. As a rule, the snowfall is 
very light. I have experienced four winters here without sufficient snow for a respect- 
able sleigh ride. 

2. The rainfall begins about the 1st of March, and frequent showers from then until 
the 1st of July. The seasons vary in regard to rainfall. 

5. There are no crops raised here by irrigation, and therefore have no experience 
with the system of irrigation. 

12. I am but little acquainted with what is known as the grazing lands of Dakota. 
I was with General Sully's expeditions in the western part of the Territory in the years 
1863, 1864, and 1865, and have some knowledge of the grazing lands, and am free to 
say there is more grass grows on one acre of land in this county than there is on five 
acres of that. 

15. It is estimated that about 3^ acres of pasturage land in this section is required 
to raise one head of beef for market. 

16. It requires about ten head of cattle to support an average family. 

17. There are eight head of cattle to the square mile in this county. 

18. The growth of grass is increasing. 

21. There is an average supply of stock water in this section. 

22. I am unable to state how many sheep are equivalent to one beef in pasturing. 
^But few sheep kept in this county. 

26. The approximate number of cattle and sheep in this county is 5,500, and they 
are kept in herds ranging from 30 to 200. 

28. There has been some difficulty in ascertaining the corners of the surveyed lands 
in this countv. 



320 PUBLIC LANDS. 

TIMBER. 

1. The land of this county is nearly all prairie or lands naturally devoid of timber. 

2. The kinds of timber planted are chiefly cottonwood, soft maple, and box-elder. 

3. There are no public timber lands in this county, and I therefore cannot give any 
plan or make any suggestion as to the disposition of the same. There are no mineral 
lands in this section, and I have no experience in mining. 

I am, very respectfully, &c, 

WM. M. CUPPETT. 
Canton, Dak., October 23, 1879. 



Testimony of F. J. Eisenmann, farmer and county cleric, Maxwell, Hutchinson County, Dakota. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1 : 

1. F. J. Eisenmann, farmer and county clerk, Maxwell, Hutchinson County, Dakota. 

2. Four years. 

3. Under soldiers' homestead act. 

4. None. 

5. Five years, and $26 for homestead. 

6. None. 

7. All agricultural lands. 

8. Geographical division. 

9. No reason. 

10. By giving the right to two timber claims in one section, each claim to have 10 
acres of timber. 

AGRICULTURE. 

1. Climate good ; rainfall, drought in 1879 ; length of season, seven months snow 
in winter about eight inches ; water, none. 

2. In the spring of the year, and not a great deal of it then. 

3. All of it. 

11. Lawsuits. 

13. At least 200 acres. 

14. It would be the best thing the government can do : 

15. In 1879 it took 640 acres. 

16. Here in Dakota about fifty head. 

17. About 100. 

18. Diminished since 1877. 

19. Have no fences. 

20. No. 

22. Don't know. 

23. Don't know. 

24. Yes. 

25. None, if good neighbors. 

26. In 500 ; 3,000 in county. 

27. Sell school lands. 

28. Nothing but trouble. 

TIMBER. 

1. No timber. 

2. Cottonwood. 

3. Dispose of it by giving it to aotual settler*. 

4. Would not. 

5. There is not. 

6. We have none. 

7. There is none. 

8. There is no timber cut here. 

9. It would, if any. 



PUBLIC LANDS. 321 

Testimony of William Haydon, Deadwood, Dale. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1 : 

Deadwood, Dak., November 26, 1879. 
To the honorable the Public Land Commission, Washington, D. C. : 

Gentlemen : I have the honor to acknowledge the receipt of your circular, and also 
to have been appointed on the bar committee of Deadwood to suggest amendments to 
the present mining law of Congress. Differing as I do so radically with a majority of 
the committee, leave was granted me by the committee to submit my personal views, 
which I do, and submit them, crude as they are, for your consideration, for what they 
are worth. I have endeavored as near as possible to embrace my views in the form of 
answers to your interrogatories. 

LODE CLAIMS. 

1. I have resided for twenty- six years in the mining regions of the States of Cali- 
fornia and Nevada, and the Territories of Utah and Dakota, and have been engaged 
during that time as judge of a court of general jurisdiction, lawyer, and mine owner. 

2. The principal defects in the present United States law are : the size of the claim 
and allowing the miner to follow the dip outside of the side lines, and allowing local 
States and Territories to make local rules and laws on the subject of locating mines. 

3. I think the practice should be abolished. 

4. The croppings or highest point of the ledge appearing above or discovered beneath 
the surface. The apex, course, angle, direction or strike, and dip can in most instances 
be determined in the early workings of the mine. 

5. I answer "yes" to this question. 

6. I have. 

7. Yes. 

8. I cannot call to mind any such case. 

9. There may be some instances, but they are very rare. I think in this region there 
are some. 

10. Yes. 

11. Under the present law I do not understand that a person has the legal right to 
" locate alleged lodes on non-mineral ground." The locator, as I understand the law, 
must first discover a ledge or lode of gold or silver bearing rock in place before the 
locator has a legal right to locate. 

12. Such a case as stated in this question might exist, but, in view of my idea of the 
law in answer to the previous question, B would not have a good cause of action. 

13. Yes. 

14. I think not. The right to follow the dip outside of the side lines is one of the 
greatest sources of litigation. 

15. I never have taken part personally in organizing local mining districts, but I am 
cognizant of much fraud being practiced in California and Nevada in making local 
rules and regulations. I have known instances where only two actual miners, who 
discovered a lode, invite a number of their friends from a distance, not miners, to 
assist in forming a new district, and pass laws most favorable to themselves, elect a 
recorder, and all done in a few hours over a gallon of whisky, and the guests depart, 
perhaps never to return. A 25-cent memorandum book is frequently used for the dis- 
trict records and carried about in the recorder's hat or pocket. 

16. Generally there is a stake planted at the discovery shaft, on which is placed the 
nottce of location, stating the amount claimed in either direction from the discovery 
shaft, the corners, the names of the locators, and amount of surface on each side of 
the ledge, which notice is recorded in the mining-district records. Miners frequently 
change the names of the locators on the notice and mining records, the stakes, and 
boundaries. 

17. There is generally a provision for amendments, and it is the exception when they 
are not materially amended. 

18. Yes, frequently; some of the grossest frauds I have ever known. 

19. I think all local rules, Territorial and State laws should be abolished, and the 
initiation of record title lodged in the register of deeds' office in the county where the 
mine is located, and in cases where there is no organized county, then in the nearest 
eounty. Also, to file the certificate of location at the nearest United States land office 
after it is recorded in the county records, so as to form a basis of future action in the 
land office, if required by the locator. 

20. Yes. 

21. In answer to the first paragraph of this question it would be easier and more in 
harmony with my previous answers to say repeal the present law and enact an entire 

21 L 



322 PUBLIC LAND?. 

new code. There would necessarily be «o much detail involved in the proper answer 
to the last i>aragraph of the question that I am not prepared, satisfactorily to myself, 
to answer at present as I would upon further consideration ; yet I will suggest the 
main outlines of my theory of the best mode of location and the acquisition of the title. 
First. Confine the right to follow the dip vertically downward to and within the 
side lines. The right to follow the strike should be confined within the end lines. 
The size of the claim should be 500 feet in length along the ledge, and 2,000 feet in 
width, which would enable the miner to follow the dip, inside of his side lines, as far 
downward as would be profitable to work. The miner to have forty days from the 
time he commences work on a ledge to determine the strike and dip by sinking a shaft 
or running a tunnel on the ledge, 10 feet deep or more, and within twenty days there- 
after to mark the boundaries by placing a stake 3 feet high, or a monument of stone 
the same height, along the boundary lines every 50 feet ; place a written notice, on a 
stake 3 feet high, at the discovery shaft or tunnel, stating the number of feet claimed, 
the course, the name of the locator and mine, and within twenty days thereafter to 
record a sworn copy of said notice in the county records, and ten days thereafter file 
a certified copy of said recorded notice in the land office nearest the location — in cases 
where there are no organized counties where the mine is situated, then the nearest 
county within the State or Territory from where the mine is situated. The time shall 
be extended one day for every fifteen miles the mine is distant from the place of county 
records and land office over one hundred miles, except where there are daily or tri- 
weekly mails to the respective places. Within sixty days after filing said notice of 
location in the land office he must demand, at the land office where his location is filed, 
a survey of his claim, which shall be surveyed by a United States surveyor free from 
all cost on the part of the locator. Within six months thereafter he must apply to 
enter said land and pay for the same at the rate of $5 per acre. If the locator fails or 
refuses to apply to enter said claim within said six months he forfeits all right to enter 
the same, and it shall be subject to entry by any other person without further notice. 
Mining localities over fifty miles from a United States land office, the United States 
surveyor shall not be compelled to survey claims unless fifty or more applicants de- 
mand it who have filed their location notices in said land office. I think from the 
hazardous occupation of the miner he should be as much encouraged and his rights 
guarded by the government as the peaceful agriculturist. At present the method of 
acquiring a title to mining claims from the government is expensive and cumbersome, 
and deters and prevents many from applying who otherwise would. If time or space 
permitted I might offer lengthy arguments in favor of the main features of my plan, 
which may be summed up as follows : To confine the locators within their lines in pur- 
suing the dip or strike ; to give him all within his lines ; to abolish all local rules and 
regulations, State and Territorial ; lodge the initiation of record title with some State or 
United States officer; make it compulsory to enter the claim ; relieve the mine from 
all expense of surveying, and place him as near as possible on a level with the agri- 
culturist in acquiring a title ; make the survey, made in accordance with the applica- 
tion suggested, be absolute evidence of boundaries, from which there shall be no ap- 
peal ; the surveyor shall not make surveys overlapping each other ; and all questions 
appertaining to the acquisition of the title from the government be determined by the 
land office. In brief, I claim for my theory more certainty in boundaries, more relia- 
bility of record title, more certainty as to the title of the ledge in its dip, a relief from 
seven-tenths of litigation under the present law, and ar impetus to mining enterprises 
and better security for investors, and a large increase in national wealth. 

All of which is respectfully submitted. 

With considerations of high regard, I am, your obedient servant, 

WM. HAYDON. 



Testimony of D. A. Mizener, lawyer, Davison County, Dakota. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1 : 

1. D. A. Mizener, lawyer, Davison County, Dakota. 

2. Seven months. 

3. I have sought to acquire lands by virtue of pre-emption timber-culture laws. 

4. I am engaged in the land business. 

5. From six to eighteen months. 

7. They are prairie, moderately undulating, and are good agricultural and pastoral 
lands. 

8. By a general rule. 

9. The present system of surveys. 

10. I cannot ; it is very good now if the law is fully enjoined. 



PUBLIC LANDS. 323 

AGRICULTURE. 

1. Mild climate ; rather light, hut increasing ; seasons similar to those of Minnesota ; 
not much snow falls ; very good supply, but no irrigation. 

2. Is needed here at all seasons ; the rainfall is very equally distributed. 

3. All in this and adjoining counties. 

4. There is no irrigation here. 

5. None. 

8. At all altitudes. 

12. No portions ; but all can be so adapted. 

13. I have had no experience in these lands. 

14. I think it is not the best policy to put any lands in the market for private 
entry, as speculators would usurp from the poor, whom the government wished to 
protect. 

15. This I could not definitely state. Well, and I think that the pasturage here com- 
pares favorably with other States. 

18. Increases every year, where settled. 

19. No fences ; they could be. 

21. From streams, rivers, and springs in abundance. 

22. Could not say. 

24. Yes, but not very well. 

27. None. 

28. Yes, much ; and surveyors who laid out the land in sections and one-fourth sec- 
tions were very careless in establishing monuments. There should be more caution 
used in seeing the work done well. 

TIMBER. 

1. Only some scrub timber. 

2. Maple, cotton wood, willow and box-elder ; cottonwood the best. 

3. By sale in small tracts, from one to two acres, for the reason that most could have 
the use of it; and not held for speculators. 

5. There is a second growth ; it is generally slow. 



Testimony of Ole Sampson, farmer and stock raiser, G-ayville, Yankton County, Dakota. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1 : 

To the honorable Public Land Commission : 

Gentlemen : The circular received from you I hereby return to you with the few 
answers to the numerous questions that have come under my observation : 

1. My name is Ole Sampson, residence Gayville, Yankton County, Dakota ; my oc- 
cupation, farmer and stock grower. 

2. I have resided here since 1859. 

3. I have acquired title to 320 acres of the public lands under the acts of Congress 
providing for the pre-emption and homesteads to actual settlers. 

4. I have never had any means or have I sought any, except so far as pertained to 
my own titles. 

5. I do not know as to any cases except my own, they being uncontested cases, and 
I complied with the requirements of the departments and the local land office where 
the lands are situated. 

6. The requirements of the departments and local land offices as is now in practice 
is in my judgment too difficult and expensive for men that can ill afford to pay the 
extra fees and expenses that have been added by the late law or rules of the Secretary 
of the Interior. It now costs $31 to perfect title to a 160 homestead, instead of $18 under 
the former practice. Besides, a person is compelled to employ some person competent 
to make out all the papers and proofs required that was formerly done by the officers 
of the local land offices, although now the fees of the officers are double that of former 
times. The law in that respect should be so changed and modified as to simplify 
and lessen the trouble and expense incurred under the present rules. 

7. The lands in this county are adapted both for agriculture and pastoral pursuits. 
We have no mineral, as far as yet known. 

10. The system of homesteads to actual settlers should be changed by requiring the 
settlers to plant and maintain a certain number of acres in various kinds of forest 
trees in addition to the other requirements of the law. The timber-culture act should 
be changed by requiring so many acres to be planted and the trees a greater distance 
apart, as the timber would grow better and attain a larger size, or else each claim 



324 PUBLIC LANDS. 

should be reduced to 80 acres instead of 160 acres, as now, and allow two entries to be 
made in each section instead of one. As now, it deprives the majority of settlers of 
the benefits of the law, and only one-fourth of the settlers can avail themselves of the 
law. Those that first come- to the country take all the timber claims and the later 
ones cannot procure any, as the 160 acres allowed in each section is previously taken. ; 
and I think that such a change would meet with approval by the majority of the per- 
sons intended to be benefited by the law. 

AGRICULTURE. 

The climate is healthy and dry. We have the average rainfall of the western coun- 
try during the months of April, May, June, and September; very little snow in winter. 
No irrigaticu used to my knowledge. 

14. The land should be retained for actual settlers ; land open to purchasers at will 
is nearly in all cases held by speculators until such a time as the actual settlers sur- 
rounding it has made it valuable, and then sold in small parcels at high prices to set- 
tlers ; and besides, it retards settlement. 
Yours, respectfully, 

OLE SAMPSON. 



Testimony of Yale P. Thielman, cleric of district court, Turner County, Dakota. 

1. Vale P. Thielman, Swan Lake, Turner County, Dakota. I am clerk of district 
court of Turner County; am a dealer in real estate and locate settlers on public lauds. 

2. Have lived in Turner County since 1870, when it was organized ; was the second 
settler in it ; have lived in Dakota nearly fifteen years. 

3. I have acquired the title to 160 acres of government land under the pre-emption law. 

4. I have attended exclusively to land matters such as locating parties on govern- 
ment lands, making out their filing papers under the homestead, pre-emption, and tim- 
ber law, and attending to contested cases for the last nine years. 

5. My 160 acres cost me as follows : house 10 by 12 feet, $75 ; five acres breaking, $25 ; 
well, $6 ; three hundred forest trees, $5 ; one agricultural college scrip, $170 ; to- 
tal, $271. I lived on the land six months, was a single man then ; during the six months 
I earned my board and $87 ; other cases that have come under my observation that 
have cost less, and some a good deal more. Under the homestead law a person with 
any tact can make more than his living and gain title to their land in the bargain. 

6. A person in contesting a previous entry has to bear all expenses and has all the 
trouble, but has no further right to the land than any other person ; and in many in- 
stances the party who enters and sustains the contest does not get the laud. There is 
at present a system of telegraphing between attorneys at Washington and others here, 
perfectly legal, but it cheats a great many out of land which seems to rightfully belong 
to them; i. e., A takes a homestead and abandons it, B contests it, cooes to trial and 
proves conclusively that A has abandoned the land, the case goes on its regular routine 
and it costs B generally from $15 to $100 to work the contest through. In the course 
of time the contest is ended, and the old entry is declared canceled. B has built him- 
self a house on the laud and lives there ; in the mean time comes C ; he has watched 
this land, has laid out no money or time (but is the drone) ; he has employed an attor- 
ney in Washington, this attorney watches when this claim is canceled and always 
knows just when that letter informing the register and receiver of the cancellation 
leaves the General Land Office for the post-office, he then sends a telegram to his client 
who at once makes some hasty improvements on the land and rushes to the laud office 
and files on the land before the B finds out that the cancellation has reached the land 
office, and the result is that B either loses the land or maybe gets half of it. I think it 
would be justice to the poorer and hard- working class of people if the law was such 
that the person who contests a claim, has all of the expense and trouble, should also have 
the first right to file on the land or otherwise have the right to tile on the land when 
he enters the contest, subject to the contest. This would also prevent parties who 
make a living by contesting claims and making money out of innocent parties from 
following their calling; i.e., it is a well-known fact that in new countries like this 
there are a good many people who set themselves up as attorneys; they run across a 
poor innocent farmer who has not been able to live on his land all of the time, still his 
land is not abandoned; they file a contest on his laud, fcheo go to him and tell him that 
they intend to take his land from him, and generally make a bargain with him and get 
from $25 to $100 to withdraw the contest ; and a great many other ways there are 
under the present law. It is also a well-known fact that at least one-half of all the 
< laims of land (or quarter sections) are paid lev or proved upon without the parties 
claiming them having lived on them and improved them according to law. I know 
personally of several claims where the people never lived on them, also where there 



PUBLIC LANDS. 325 

was not sufficient improvement. The law is strict enough, but these matters are not 
looked into enough. Sometimes witnesses are examined before grand juries but hardly 
ever any indictments found, as there are so many and it would be hard to know where 
to begin. I believe if a commissioner or commissioners could be appointed who at 
stated periods would visit localities and inspect improvements and hear testimony and 
give titles to land, it would be better for honest settlers and the government, and would 
hinder the great amount of swindling that is carried on. 

7. Our Territory is all (with a small exception, the bad lands) good farming lands. 
Our county (Turner) is unsurpassed for agriculture or stock raising. 

10. It is the opinion of most of the people who are best acquainted that the govern- 
ment is too liberal or gives too much land. A person can now get 480 acres of land, 
and there is not one farmer out of fifty who can use it. The result is a good deal of 
our land gets (where it was never intended to go) into the hands of speculators. I 
think if our laws were so made that any one person could only take 160 acres of a 
homestead and could only keep that by living on it and improving it, it would be 
more satisfactory. At present the settlements are so thin that people cannot have 
school and church privileges, and nearly every other quarter section is owned by some 
one that does not live on it and that holds it for a raise in land. One hundred and 
sixty acres of farming land is enough to support a good large family, and give a good 
support and have neighbors close together, and if parties taking homesteads were com- 
pelled to live on them, say, six or seven years or lose them, none but those who in- 
tended to take them and make a permanent home out of them would have anything 
to do with them, and such a law would hurt none that were honest in their intentions, 
but on the contrary would protect them and keep adjoining land out of speculators' 
hands. 

Very respectfully, your obedient servant, 

VALE P. THLELMAN. 



Testimony of E. C. Walton, farmer, Gayville, Dakota. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1 : 

1. E. C. Walton, farmer; Gayville, Dakota. 

2. About eight years. 

3. Under the homestead laws. 

4. Not much. 

5. No knowledge. 

6. None. 

7. Principally agricultural and pastoral ; no minerals and little timber. 

8. General rule. 

9. No practical acquaintance with surveys. 

10. No suggestions unless it be a more rigid ruling as to actual improvements and 
continued residence on the lands given as homesteads and entered pre-emptions. 

AGRICULTURE. 

1. There is a sufficient supply of snow and rain; climate dry; six months winter, 
including one-half fall and one-half winter. 

2. Spring, fall, and summer, usually when needed. 

3. All. 

5. None. 

6. No experience. 

8. Know nothing about it. 

12. About one-twentieth. 

13. It is not practicable. 

14. It is not advisable. 

15. Eight acres, fair average. 

16. Twenty. • 

17. About ten, though there is a material change in the. last year, all trying to in- 
crease in cattle on account of hard times from grasshoppers. 

18. Increased where tbe old grass is not burned until spring. 

19. A Territorial herd law is about all the fence. No. 

20. No. 

21. The Missouri, Dakota, Vermillion, and Sun Rivers, and Clay, Turkey, and a few 
other creeks. They often use well- water drawn up by windmills. 

22. Ten. 



326 PUBLIC LANDS. 

23. Very little knowledge, but think it diminishes. 

24. Yes. 

25. None, to our knowledge. 

26. First, about 3,000 or 4,000 ; second, from 20 to 250 ; sheep, 20 to 500. 

27. A more rigid rule in regard to accurate surveys and establishing of section cor- 
ners and quarter corners. 

28. Great trouble ; a great many have had to have their claims resurveyed to find 
lines and corners ; and, as to timber claims, it should make no difference if there was 
a half dozen trees or saplings on it, or even a half acre of willows, for that amount 
often hinders actual settlers from getting their lands contiguous, when in reality the 
timber on it does not amount to anything to them, as it is often nothing but brush. 

TIMBER. 

1. Considerable along the Missouri River, principally cottonwood, some box-elder 
and a little oak. 

2. Mostly cottonwood, though there are some nice box-elder groves. 

3. I would sell them to actual settlers in five-acre lots, and no more, at $5 per acre, 
for the reason that all must have timber to improve land ard fuel. Some who get 
timber claims charge $8 to $12 per cord, and settlers object to buying. 

4. I would sell in square five-acre lots and no more, at $o per acre and no more, 
unless it were in heavy districts of timber and scarcely no prairie, then I would sell in 
80-acre lots at $2.50 per acre. 

5. Very limited ; second growth does not amount to but very little ; perhaps a great 
many sprouts start up, but generally die before large enough for anything. 

6. Often started by the Indians. Place them all on reservations, with penalty for 
any one to start fire purposely or carelessly. 

7. It is a great waste ; should be sold to railroad by the tie, and superintended by 
a commissioner, and laps given to actual settlers. All w r aste prosecute. 

8. The custom is to cut and slash away ; each individual or corporation tries to get 
the most, and in consequence there is great waste. Generally, those who cut the tree 
claim the whole. 

9. They would, decidedly, provided the laws were very strict on land officers, with 
penalties for non-performance of duties, and also penalties for going beyond their 
jurisdiction. 



Testimony of Gustavus A. Wetter, register, and Lott S. Bayless, receiver, United States 
land office, Yankton, Dak. 

Gustavus A. Wetter, register, and Lott S. Bayless, rajeiver, at Yankton, Dak., 
testified, November 7, 1879, as follows : 

The forms in the land office should be simplified to such an extent that three-fourths 
of the labor at present performed could be saved. By decisions and constructions the 
department has increased the labor of making out papers more than 50 per cent. 

Fees should be abolished, aud the salaries of registers and receivers fixed by law. 
There is more business and labor at an old office than at a new one, and many old 
offices do but little over a thousand dollars a year. Old offices answer more letters, 
handle more suspended cases, and get up more proofs than a new one. Registers and 
receivers should have a seal. In this district parties have forged the names of both 
register and receiver of the United States land office, and mortgaged lands through 
the use of forged final proofs. A seal would obviate this. 

Registers and receivers should have the power to subpoena witnesses and perpetuate 
testimony. Registers and receivers sometimes sit a fortnight now on contested cases. 
The government should allow»rent, as all other offices get rent and fuel. Persons doing 
business require to be comfortable. Office rent should be allowed in addition to a 
room in which to hear contests. Titles of instruction to prove up should be abolished, 
and the law repealed. There has never been a contest since the law passed. The ob- 
jection notice is now published in the newspapers of any places, and heavy charges 
are exacted for such publication. The register is burdened with keeping accounts of 
publishers. 

It now requires two to three years, and sometimes from five to six years, to get a 
patent from Washington. Thoy should be all issued in turn. Members of Congress 
and attorneys frequently get patents for settlers. This office knows nothiug of them; 
no word is sent here of the issue or delivery of the patent so the books can be marked 
correctly. In abandonment and relinquishment of homestead, pre-emption, and tim- 
ber claims, as the registers and receivers take proof and recommend action to the de- 
partment, and this is the basis of action by the General Laud Office, registers and 



PUBLIC LANDS. 327 

teceivers should at once, on proof of abandonment or relinquishment, permit legal set- 
tlers to enter on the land. It now requires from one to eight months to get a tract 
cleared for entry under this rule from Washington. It makes dangerous and vexa- 
tious delays, and casts odium on the district land officers. We know of cases where 
persons who should have been permitted to file, and were the rightful owners, have 
been deprived of their rights by parties who obtain information from Washington as 
to cancellation and take advantage of it. 

We see no reason why a settler should not be permitted to file an application for a 
homestead or declaratory statement, or for a timber-culture claim, as often as he likes. 
He enhances the value of the land and makes new homes. The law does not contem- 
plate that the first act is final. 

The exactions of the homestead law at present as well as of the pre-emption are 
onerous. The only question asked by the register and receiver should be, " Have you 
complied with the law ?" 

This district, 30 miles wide and 90 miles long, is purely an agricultural district. 
Some timber has been planted, mostly cottonwood and box-elder and oak. Walnut 
trees have also been planted. 

Crops are raised without irrigation. For eight years there have been rains during 
the summer, enough for crops. They usually come in March and April. We raise all 
the grains, flax, &c, the same as in the Middle States. 

Tbis is a fine grazing country ; sheep particularly thrive well on account of dry 
winters. They are of mixed breeds, and are worth from $2.50 to $3.50. Each sheep 
clips from 4 to 6 pounds of wool. The cattle are of mixed breeds and some of them 
are good. Calves are worth from $4 to $5 : yearlings, $12 to $15 ; two-year- olds, $12 
to $18 ; cows are worth from $25 to $30. Butchers pay from 2 to 2f cents per pound. 

We have more than 800 families of Russians and Mennonites, who first commenced 
coming in 1872. 

All the mills on Jim Eiver have been idle for five months, because one B. M. Smith 
built a dam 14 feet high across the river, which has flooded about 50,000 acres of 
unsurveyed agricultural land belonging to the government. This was done for the pur- 
pose of enabling them to make a lake, so that they could call it reclaimed land, get it 
meandered by the United States surveyors, locate the fractions around the so-called 
lake with soldiers' additional scrip ; then cut away the dam, let the water out, and claim 
all the land that the water covered as reclaimed land. The surveyor-general of the 
Territory ordered his deputies not to meander the lake, so the movement failed Sixty 
miles above the dam the river was brimfull, while in Brown County, below the dam, 
it was totally dry — cutting off all the mills for 180 miles to where it emptied into the 
Missouri. There was a small summer-dry lake called Sand Lake, just above this dam, 
which they widened over two townships of United States government land. They 
claimed they wanted to make the stream navigable from Sand Lake to Jamestown, on 
the Northern Pacific Railroad, a distance of about 128 miles. The result was the set- 
tlers got indignant because they could not water their stock, and the mill men could 
not run their mills, so some one cut away the dam. 

The General Land Office should issue for general circulation, through the district 
land offices and otherwise, a compact pamphlet containing the laws, points of instruc- 
tion, and the rights and duties of settlers under the respective laws. This would save 
correspondence and give much needed information. The only entries in this district 
are pre-emption, homestead, and timber-culture locations. 

All scrip should be abolished, or it should be redeemed by the government in money 
and not located in lands. They make much trouble and occasion loss, because coun- 
terfeits are in circulation. We were informed by the register and receiver at Sioux 
City, Iowa, that about 200 pieces of counterfeit and forged scrip were located and 
patents issued before they were discovered. The department ordered back the patents 
which were still in the district office, but lost those which had been issued. The loss 
fell on innocent purchasers. 



Testimony of Daniel Bacon, publisher of the Boise City Republican, Ada County, Idaho. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1 : 

Boise City, Idaho, September 30, 1879. 
Department of the Interior : 
Dear Sir : In compliance with your request I hereby answer the folio wing questions: 
Most respectfully, your obedient servant, 

D. BACON. 



328 PUBLIC LANDS. 

1. Daniel Bacon, Boise City, Ada County, Idaho, publisher of the Boise City Repub- 
lican. 

2. Thirteen years. 

7. The public lands are of several classes. First. Sage plains destitute of water, 
lying in the most part where they can with considerable expense be irrigated and made 
productive. Second. Arable lands situated along water courses and in the low valleys, 
where the labor of irrigation is small. Third. Hilly and mountainous lands, well 
adapted for pastoral purposes. Fourth. High mountains, covered in the most parts 
with pine and fir. Fifth. Mineral lands, embracing in a large portion the two latter 
classes. 

8. I would recommend that a commission be appointed (assisted by at least one prac- 
tical geologist and mineralogist) to designate the several classes. 

9. The sage plains should be granted in large parcels to those who will utilize them. 
The pastoral lands should also be surveyed in large parcels, with reference to the nat- 
ural water courses, so as to accommodate as many locations as possible. The mineral 
lands should be surveyed in small parcels, and sold with some restrictions. The timber 
and arable lands should be subdivided in conformity with the present system — the 
arable lands disposed of to actual settlers only, and the timber lands to those who own 
farms, or mines, or saw-mills, or are settled on them and make a subsistence from their 
proceeds. (Your attention is respectfully called to our editorial on " Vine Culture," 
which will be found in last week's issue, September 27, Boise Republican, which is 
transmitted to you.) 

AGRICULTURE. 

1. The climate is mild. Length of rainfall six months, from the first of November 
to the first of May, in the valleys. Snowfall in the mountains corresponds to the rain- 
fall in the valleys, with this exception : commences a little earlier in the fall, and 
continues a little later in the spring. 

2. The greatest supply, caused by the melting of the enow, comes when most needed. 

3. None. 

5. All the cereals and fruits indigenous to the Northern States. 

6. Fifty miners' inches on an average. 

7. The rivers. The supply is abundant. 

8. From my experience and observation on this coast for the last twenty-nine years 
I am of the opinion that irrigation is especially beneficial to the soil, and that crops 
can be raised and successfully cultivated in any altitude below 4,000 feet. 

9. There is no restriction whatever. The water that is not utilized returns volun- 
tarily. 

10. Only a small moiety has been claimed in the different streams, and in Snake 
River none. 

14. Limited. Certainly. 

18. Diminished. 

19. No. 

20. No. 

23. Diminished. 

24. No. 

TIMBER. 

2. Lombardy poplar, principally on account of its rapid growth. 

3. For the reason that such lands are nearly all mineral lands, and worthless for ag- 
ricultural purposes. I would favor leasing them in small parcels, say for $1 per acre, 
and not to exceed 160 acres to any one individual, the time not to exceed ten years. 

5. There is a second growth of the same variety ; grows wlow. 

7. The government timber is the chief source of all our supplies for mining, build- 
ing, agricultural, and fuel. The timber we must have or break up housekeeping, and 
should it fall into the hands of speculators we would find ourselves removed from the 
" frying-pan into the fire." If the United States must dispose of it, then pared it out 
to those who own mills, ranches, mining claims, and actual occupants, who maintain 
themselves by their own industry. This would prevent unnecessary waste, and, to a 
great extent, destruction by fire. Fire alone destroys more than is consumed by all 
other sources. 

8. There is no restriction for cutting ; but whoever constructs a road into the timber 
claims exclusive right to travel the same. Whoever fells a tree has the possessory 
right to it. 

9. I think not. If the land agent should attempt to force an arbitrary law he would 
be obliged to travel to the mountains and cut his own fire-wood, or aid and abet those 
who were breaking the law. 



PUBLIC LANDS. 329 

LODE CLAIMS. 

1. I have been for the most part of time for the last twenty-nine years engaged in 
mining in California and Idaho. 

2. The general government ought not to delegate to the Territorial governments any 
power to make mining laws. Public land agents should be recorders for mining 
claims. In the several districts there should be chosen or appointed deputy recorders, 
whose duties should be to see that the claims were properly surveyed and marked on 
the ground, and the locator should have proper time to ascertain the direction of his 
vein or lode, do his first assessment, and on report of the facts to the deputy it would 
be the deputy's duty to see the work and certify thereto ; then, and not until this has 
been done, should the records be transferred to the books of the public land agent. 
In Idaho all district regulations have been abolished by the general assembly, and the 
county recorders are made the recorders of mining claims, and ten days is the limit 
for making record of claims. This works great inconvenience and injustice in many 
cases. Sometimes it is difficult to travel to the county-seat in the time required. 

3. The practices should at once be discontinued, as it gives chance for litigation 
that otherwise would not arise. No recorder should be allowed to make a record 
of the same ground to two parties, and it should be the district recorder's duty to 
know that the applicant was entitled to the privilege of prospecting the ground 
before entering his claim on the books. 

4. The apex or top of the vein or lode is the highest point of the center of the ledge. 
The course of the vein or dip cannot always be determined by the early workings of a 
ledge. In my experience, frequently hundreds of dollars are expended before either 
the course or dip of a ledge has been determined. I refer you to an article in the last 
issue of the Boise* Republican, entitled " The Comstock of Montana." 

5. They are not. 

6. There has been. 

7. Yes. 

Should you desire more specific answers or explanations to the above, or answers to 
any questions that have been omitted, I will be happy to serve you. 
Yours, most respectfully, 

DANIEL BACON, 

Bois4 City, Idaho. 



Testimony of George Chapin, farmer and stock raiser, Goose Creek, Cassia County, Idaho. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1: 

1. George Chapin, farmer and stock raiser, Goose Creek, Cassia County, Idaho. 

2. Territory ten years. 

3. No. 

7. Mostly desert and stock range. 

8. All desert lands without water ; with water, good agricultural lands ; most of it 
can be irrigated, and canals practicable. 

10. Nineteen-twentieths of the public land in Idaho is absolutely worthless without 
the introduction upon it of water for the purpose of irrigating it. The hills and 
mountains, good stock range. The plains are a desert without artificial water. Gov- 
ernment should grant subsidies to companies or individuals who would construct 
canals. All valuable and productive when irrigated. 

AGRICULTURAL. 

1. Plenty of water can be had by the aid of capital. 

2. Winter and spring ; it comes a little before most needed. 

3. None. 

4. Nine-tenths. 

5. All kinds that are raised at the north. 

6. Two cubic feet per second for thirty days. 

7. Rivers and creeks. 

8. Irrigation improves the soil ; 5,000 feet. 

9. Waste water usually returned to the stream or main ditch. 

10. Only to a very limited extent under United States law and local custom. 

12. Mountains and narrow margins of rivers and creeks. 

13. It would require thousands of acres of such pasture. 

14. Settlers have the unlimited use of these lands now for stock range. 



330 PUBLIC LANDS 

15. One thousand acres each. 

16. The increase of 500 head, or 50 milch cows. 

17. About three. 

18. Diminished. 

19. A few have fenced ; can be confined safely. 

20. Not particularly. 

21. Creeks, rivers, and springs. 

23. Diminished. 

24. Not long. 

25. No legal conflicts. 

26. Twenty thousand ; they roam at large. 

27. Greater inducements to those getting the water on them. 

28. Yes ; the stakes usually rotted off and broken down and lost. 

TIMBER. 

1. Only on mountain tops — white fir. 

2. Poplar ; five years. 

3. I would reserve the timber for the use of all settlers in this section ; would not 
dispose of them. 

4. The timber is on the high mountain peaks and in steep mountain gulches. 

6. The government should impose a fine on the careless. 

7. Timber here is limited and should be reserved for settlers. 

8. United States law. 

9. Yes. 



Testimony of James A. Chase, probate judge, Marsh Basin, Idaho. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1 : 

Marsh Basin, Cassia County, Idaho, September 24, 1879. 
Public Land Commission, Washington, D. C. 

Messrs : Herewith I return the interrogatories furnished, together with answers 
to some of them. 

1. My name is James H. Chase; Marsh Basin, Idaho; by occupation at this time 
probate judge. 

2. About two years. 

3. I have not for myself. 

4. Considerable part of declaratory statements, affidavits, proofs, &c, are made be- 
fore me as a court of record for the local land office. 

5. I hear of no cases from which I can form a rule. 

6. Yes ; the law ought to be made explicit about parties going in person, or not going, 
to the local office to make final proof. Where parties live more than 30 miles from a 
land office they should be clearly allowed the right to go before any local officer having 
a seal and giving bonds and making all proof, and send fees and payments in the usual 
business way to the local land office. It is a great hinderance in the sale of lands that 
parties have so often to go and take witnesses on these long and expensive trips. In 
cases of contest the land officers could be authorized to designate some officer within 
the county where the land is before whom the testimony could be taken, and forward 
the same to the local land office or the commissioner general for their consideration 
and action. Again, I think the general government ought to be bound by the acts of 
its officers. If I send money in payment for land to a United States land officer, he 
receiving and receipting for the same, and fails to apply the money to the purpose for 
which I sent it, the government will not issue to me my title unless I pay again, and 
perhaps the third time. The fees for newspaper publication in land-office matters and 
the fees in general might be reduced and a sum stated to be charged and no more 
allowed. 

7. In this county and Territory as well the greater part of the surface of the country 
is only adapted to pastoral or grazing purposes. It is hilly and mountainous, but with 
no lack of good soil over hills, mountains, and in valleys. The only timber (pine, fir, 
spruce, and poplar) grows on and in the canons of the mountains. 

8. Have not given the matter sufficient to suggest better plans than those adopted. 

9. The same as last answer. 

10. It is one of the severest struggles a poor man with a family can undertake in 
his lifetime to settle upon, pay for government land, and support his family all at the 



PUBLIC LANDS. 331 

same time. Many try it and fail after much deprivation, toil, and hardship. As a rule, 
in these Territories, to conquer a piece of land and fence it, making it in any way 
valuable, and paying the necessary fees to land officers, is worth all the land is worth. 
If the price of land was less the government would derive more revenue from them. 

AGRICULTURE. 

1. Here the climate is dry, cool, and bracing to man and beast. Rainfall and snow- 
fall are insufficient to irrigate all the good and otherwise fertile lands in this Territory. 
The seasons of mildness here in this county are too short for fruit-growing. 

2. The water supply is principally derived from the melting snows, and for the most 
part comes from the mountains into the fertile valleys when needed to grow and ripen 
crops. 

3. Comparatively none. 

4. Not more than one-third of the area in this county, and this perhaps would be 
true of the whole Territory. 

5. Wheat, oats, barley, potatoes, &c, &c, and good crops. 

6. No accurate knowledge from which to report. 

7. The whole or less of Snake River could be easily taken from its bed and made to 
irrigate a half million acres of rich and level land. In the near future this must be 
done either by private capital or the government. 

8. Proper irrigation enriches the soil ; improper, washes it away. Where land can 
be watered grain will grow and ripen in good yield 6,000 feet above the level of the 
sea. 

9. Most of the supply of water is exhausted in irrigation ; the surplus is returned to 
natural channel by local regulation. 

10. The water has mostly been appropriated where it could be done cheaply'; other 
and larger supplies are awaiting the investment of private capital. 

12. Almost the whole area of the Territory, mountains and all. 

13. It is not now practicable. When inventions shall render durable fencing cheap, 
then it will do. 

14. It is not advisable to put pasturage lands of this Territory in market until they 
can be fenced, and then the limits should be liberal — at least one half or whole section. 

15. The country is too extensive, too wild, too careless in habits to answer the first 
of this question, but from extensive travel I think this is the best beef -raising country 
I ever saw. A fine rich grass grows over the surface of nearly the whole of it, which 
is sufficient to keep cattle fat the year round. 

16. I am unable to answer, but calculators say stock-raising here is equal to 5 per 
cent, per month on the investment. 

17. There are probably 20,000 head now in the county and half as many horses, but 
few sheep. ' 

18. The grass has diminished largely, but not owing to stock ; several winters of 
light snows in succession have told heavily on the grasses. 

19. They do not. As a rule it would be safe to confine cattle on a range by fence, 
but there are winters in which stock has to be fed. 

20. No ; a variety of ranges and feed make the best beef. 

21. From large and living springs from the mountains. 

22. Five or six sheep are considered by stockmen to be equal to one beef in grazing. 

23. In all dry countries sheep will kill out the grass. It is to be hoped this country 
will escape the calamity which has fallen upon California through sheep grazing. 

24. Not agreeably or prosperously. Sheep leave a stench upon the ground which is 
offensive to other stock. 

25. None to speak of as yet in this Territory. 

26. Probably about 5,000 sheep, but the county is almost exclusively given, so far as 
it is used, to cattle and horse raising. 

28. There is much difficulty in finding corners or lines on surveyed lands here ; that 
work has been very sparingly done ; it should have been done, and all lands to be 
surveyed, in such manner that corners would be visible and permanent. 

TIMBER. 

1. There is very little timber growing in this part of the Territory, and by reason of 
waste and culling and careless fires it is rapidly being destroyed. Enough of pine, 
fir, and spruce is growing here to supply all agricultural and mining wants, &c, and 
it is admirably adapted to the wants of the farmer in fencing. It is not preserved, 
however, and as it diminishes the climate will be affected by less snow and rain. I do 
not know of a greater national wastage than in the ravaging of forests on the public 
lands west of the Rocky Mountains. 

2. None. 

3. I would sell or give all timber lands to the States or Territories for the use of the 



332 PUBLIC LANDS. 

people thereof. They could make it the duty of some county officer, in their respective 
counties, without additional cost, to protect the growing timber and cause it to be 
used as a careful private individual would care for his own. To sell it to private 
parties would lead to a monopoly and cause much trouble to actual settlers. As the 
law now is, it is wholly inoperative with timber here, and the officer in whose care 
it is a thousand miles away. If the government continues to own such lands, a more 
effective way must be found to protect them. Men there must be whose especial duty 
it is to watch over the timber in these western Territories. If ever sold to private 
parties, very small tracts only should be sold to each party. 

4. It would seem to be impracticable to classify them, for if in this Territory they 
are timber lands at all they are just alike and small variety of timber. 

5. This country is hardly old enough in settlement to say what the second growth, 
if any, would be, but so far as I can observe, and I take an interest in all these matters, 
where timber has been cut so as to leave the ground nearly stripped of trees a kind of 
scrub bush, with wild cherry and service bushes, utterly worthless, spring up and take 
full possession of the ground. 

6. The loss to this Territory by forest fires is incalculable. Every summer they rage, 
and they utterly destroy all green timber in which they burn. At the rate which I have 
observed, in three to five years there will be no green timber left in this Territory, and 
from that it will become almost uninhabitable. Empires preserve their forests ; re- 
publics do not. It is not difficult to give the reason. From my judgment I reason 
that in almost every case these fires originate through carelessness and wantonness of 
men living near the timber. It is often rumored that Indians set the fire in a spirit 
of revenge, but I cannot discover any evidence leading me toward a belief of this. 
Nearly all these fires could easily be controlled and extinguished at their beginning, 
but "what is everybody's is nobody's business," and from indifference and an unac- 
countable apathy on the part of the settlers they are allowed to burn for months. 
There is law to make men turn out and assist a sheriff against a common enemy ; there 
should be a law compelling men to assist the proper officer to put out the forest fires 
when called upon. 

7. The wholly unnecessary waste of the timber on the public lands west of the Rocky 
Mountains in destructiveness is second only to fires. Every man pushes back, cuts, and 
culls the best, and breaks and destroys much of the young and thrifty timber. More 
close and stringent legislation would cure this evil, as well as control the fires. All 
laws passed by the general government up to this time looking to the protection and 
preservation of its timber, from my own observation, have been wholly ineffectual to 
check the destruction and waste. They are too far away, uncertain, and unexecuted. 
Millions are given for harbors and rivers for commerce, and hardly a farthing for the 
preservation of magnificent forests inland. 

8. Every man owns all he cuts, and from a spirit of greed or speculation they often 
cut much more than they use. 

9. Probably not ; because the land officers are as far away and are no more inter- 
ested in them than the present marshals. 

MINERAL-LODE CLAIMS. 

1. My experience in mining or opportunities for observation have been so limited 
that I can hardly make a suggestion further than to say that my impressions are that 
the law is not clear or explicit enough on the number of lode claims an individual 
may locate and hold. I have known of men in California and Nevada and this Terri- 
tory to hold by location from one to twelve claims of full dimension. It is common 
practice among miners, or rather men speculating in mines. This often works a hard- 
ship on men seeking ground to work, and being unable to buy from the speculators. 
The law in this matter should be made clear and limit an individual to one claim 
in a State or Territory by location, and this should be worked to some extent. The 
law requiring $100 worth of work yearly, in practice, is but little observed. Changing 
the law to meet such requirements would give employment to more men and more of 
the valuable ores would be extracted. 

19. My opinion is that all mining-district laws, customs, and records could well be 
abolished as to future locations. They exist in so many and different localities and 
requirements they are a source of confusion to the miner. In nearly every instance 
these local laws and customs made in mining camps are of the flimsiest kind and 
least respected. Often a recorder is elected who is hardly able to write his own name. 
No books are provided, and the next week, perhaps, the recorder is up and gone for 
new diggings, leaving no successor. The only deference and dignity these local laws 
have is paid to them by the United States Congress. I am of opinion that the gov- 
ernment can make a few and plain rules and regulations touching the location, size 
of claims, work, corners and lines, and possessory title, which, when disseminated 
through mining localities, would be more satisfactory to all concerned than the present 
local customs or laws. 



PUBLIC LANDS. 333 

20. I think the adjustment of controversies concerning mineral lands prior to issue 
of patent should be left where it is, in the courts, because in those cases intricate ques- 
tions and points of law often arise, and land officers are not noted for their legal knowl- 
edge ; indeed, for the most part, they are better known for their ignorance of the law 
and its practice. The whole plan of bringing litigation before tribunals unread in 
law and strangers to the practice of it is wrong and dangerous. Besides, the courts 
are held in every county, while the district land office may be two or three hundred 
miles away ; this of itself would be an unbearable hardship. The tendency to make 
district land officers judges and courts of litigation ought to be, for the convenience 
of the people, restrained rather than extended. 

22. Parties ought to be required to procure title to their mineral ground within a 
reasonable time. Two years from location would be reasonable. Much valuable min- 
ing ground has been entirely worked out, especially in California and abandoned, and 
this^oftentimes by foreigners, without one cent being paid the government. No other 
country on earth is so negligent of its own interests and the protection of the rights of 
its citizens as this in respect to the working of her mines. From my own observation, 
thousands of foreigners take out their first naturalization papers for no object only to 
gain the right to locate, work, and traffic in mining claims, and when they get a sufficient 
sum they go back to their native country, never having the least intention of becom- 
ing a citizen of this. The first papers alone ought not to afford any rights or privi- 
leges in mining matters to a foreigner. Under our laws our mines of precious metals 
are being depleted, worked, and made available for wealth to the foreigner just as 
well as to an American born, and this is especially true of Canadians and English sub- 
jects, who make great complaint if an American catches a mackerel on their coast with- 
out paying for it, and they have to pay very dearly too. I know all this is wrong and 
ought to be remedied, and that quickly. 

PLACER CLAIMS. 

1. But little mining is carried on in this county ; only some claims along on Snake 
Eiver of very fine gold in gravel, but the ground is extensive for future locations. 

2. I am somewhat familiar with the workings of the law. The law is obscure as to 
the amount of annual work or expenditure on placer claims. One hundred dollars' 
worth of work is generally construed to apply only to lode claims or quartz claims. 
It should be made definite on placer claims. 

3. No data from which to speak. 

4. No data from which to speak. 

5. Prematurely answered under Question 2. 

6. Answered under Question 2. 

The size of placer claims is too large. There are more miners than mines. Ten 
acres would be plenty and just as effectual as more in the finding and developing of 
the ground. It is easy and common practice to consolidate claims in the hands of one 
man by purchase. It is also common practice for a miner to locate himself a claim, 
and then exhaust all or most of the ground in locations for other and distant or indif- 
ferent parties, and then procure a bill of sale or deed from those parties for nothing 
or a trifle, and then he owns the whole. The law in this respect should be clear that 
to make a valid location the party himself must go in person and make it. 

COAL LANDS. 

Concerning coal discoveries or lands, the same requirements should be made, and 
the number of acres in a location reduced from 160 to at most 80 acres. Like placer 
claims, if the coal ground is of any value, 10 acres of the former and 80 acres of the 
latter is plenty for one man. The time for title, price, and mode of procedure touch- 
ing coal lands is well as it is. Every case of litigation in placer mining, within my 
observation, has arisen on the insufficiency of corners and lines being established and 
made visible. The law, however, bearing upon this is correct, and if changed at all 
should be made more stringent. 

7. I do not know of any such instances. 

8. I do not know of any such instances. * 

9. I have no knowledge at present of such case. 

Gentlemen : All of the foregoing answers have been somewhat hastily written and 
they are based upon my better judgment. No doubt your attention has been called 
to all of the points or suggestions, given more fully and clearly than I have done, but 
none will be given in a kindlier or more sincere feeling to help improve the laws look- 
ing to the better protection of our public lands, forests, mines, citizens, and our gov- 
ernment. 

Very respectfully, your obedient servant, 

JAMES H. CHASE. 



334 PUBLIC LANDS. 

Testimony of I. S. Singiser, receiver of the land office, Oxford, Idaho. 

I. S. Singiser, receiver of the land office, at Oxford, Idaho, testified September 20, 
1879, as follows : 

I think the register and receiver should have the power to summon witnesses and 
perpetuate testimony in matters relating to the land office. I believe in abolishing 
all the recorders of land districts and putting all the business in the United States dis- 
trict land office. I think, also, that the timber lands of the United States would be 
better protected if they were in the hands of the United States Land Office than they 
are now. I think that the notice of intention to prove up the land entry should be 
abolished. I do not see any use in it. It makes a strife among the newspapers, who 
seek the advertisements. As the Land Department acts upon the proof taken by and 
the recommendation of receivers of the Land Office, I think it would be best to make 
the cancellation of land entries a matter for the register and receiver, and let the man 
on the land have the advantage in making the filing. The people down here think a 
man should be allowed to make as many pre-emption filings as he wants, going from 
place to place, until he finally gets a home. As you have a pre-emption clause in the 
homestead act, I think if you increase the acreage of the homestead that one act is 
sufficient. 

I think there should be a pasturage homestead. I think that about 20 acres would 
sustain a beef and about 6 or 8 acres would sustain a sheep. Sheep tramp out every- 
thing. The greater part of water rights in this Territory have been taken up. There 
should be something done in regard to getting the marsh lands of the Territory in the 
market. We have four or five thousand acres right at Oxford, the best land in the 
Territory. Nobody owns it. It is not surveyed, and people are cutting hay from it. 

There is another thing. I don't think the extra two years allowed in proving up on 
the lands is of any use ; it only makes work in the land office, which has to send out 
two notices. I think all the papers of the land office might be consolidated, and there 
is a lot of questions in the final proving papers that are perfectly useless. I think it 
would be a good idea when a man comes to prove up a homestead or pre-emption en- 
try to ask him just this one question: " Have you complied with the law ? " and make 
the witnesses swear simply : has this man complied with the law ? 

I think it should be so arranged that the register and receiver could go about in 
their districts and take testimony. It would be a great accommodation to the settlers 
certainly. There was one man who came to our office who had to stage it two hundred 
and fifty miles and then fifty miles on horseback. I think that the pasturage lands of 
the Territory should be sold, and I think that the timber lands should be sold in small 
tracts not to exceed 160 acres, preferably to actual settlers. I think that timber lands 
would be more protected if people owned them themselves. It would stop depreda- 
tions. There are a good many fires in Idaho. Indians and prospectors, &c, start 
them. They have been burning now during nearly all the summer. They have burned 
some of the finest timber in Idaho. 

There is another subject I wish to speak of. We have a large Indian reservation in 
our district which is not at all utilized. It should be opened for settlement. It is 
about seventy-five miles long by sixty miles wide, and only the upper end of it is used 
by the Indians. The lower end of it is filled up with settlers. There are, I suppose, 
fifty or one hundred settlers (families) upon the reservation. They have been there 
many years, and the Territory of Idaho exercises its jurisdiction over them in collect- 
ing taxes from them. I think that there should be some system devised by which the 
rulings and decisions of the Land Office should be distributed to the various local land 
officers. 



Testimony of John Wood, stock raiser, residence State Creek, Idaho. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1 : 

1. John Wood, stock raiser ; residence State Creek, Idaho. 

2. Sixteen years. 

3. The land here is all unsurveyed. 

7. Agricultural, pastoral, and mineral. 
10. In my opinion there is none. 

AGRICULTURE. 

1. The climate on the rivers is mild ; but very little snow, except on high ranges. 

2. In the irrigating season there is no rain. 

3. None. 



PUBLIC LANDS. 335 

4. About one hundredth part of this section. 

5. Any crops that can be raised in a northern climate. 

6. As much as in any other country. 

7. There is plenty of small creeks along the foot-hills. 

8. Crops can be raised at an altitude of 3,000 feet. 

10. Under mining laws. 

11. None. 

12. Ninety-nine per cent. 

13. In my judgment it should be homesteaded, and each homestead should have a 
section for pasturage. 

14. It is, in my judgment, advisable to put the lands here in market for private 
entry, and the quantity to each purchaser should be limited. 

15. Ten. This is the most mountainous. 

16. One hundred head. 

17. About fifty head. 

18. It is about the same as when I first came here. 

19. They do not fence, neither can they be confined with safety at any time. 

20. They could not be confined. 

21. Springs and Salmon River. 

24. They will not ; sheep will drive cattle off. 



1. There is no timber except on the high ranges, which is fir and pine. 

2. There is none planted. 

3. The present timber law is as good as any. 

4. I would not. 

7. There is none here. 



Testimony of John C. Young, rancher, Marsh Valley, Oneida County, Idaho. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1: 

Answers to questions submitted by the Public Land Commission. 

1. My name is John C. Young ; reside in Marsh Valley, Oneida Couuty, Idaho Terri- 
tory, and am a "rancher." 

2. Have lived there only a few months, but was born and raised in Utah. 

3. Have acquired 160 acres of land under the desert act and have sought to acquire 
80 acres under the timber act, but have failed on account of grasshoppers. 

4. Have been four years in the newspaper business and have watched the acquire- 
ment of lands under the present system pretty closely. 

5. The expense and trouble of acquiring title to desert land is great owing to the 
outlay for constructing irrigating ditches. I believe that desert lands should be sold 
to canal companies incorporated under a State or a national law, which' law should 
compel the absolute transfer by such companies of the water right with the land so 
redeemed by the canal. In the Rocky Mountain region all land is desert except natural 
meadows, which are limited both in numbers and extent ; that is, no lands in this 
region, with the exception named, will produce agricultural crops without irrigation. 

6. In Utah, it seems to me, the law does not protect non-Mormon settlers. I was 
once burned out and driven off a quarter section of public land because a Mormon set- 
tlement in Idaho " claimed " said land as a " co-operative herd ground." Now, Mor- 
mon settlers ought to be protected in Utah, but I presume they never can be fully until 
Mormonism as a theocracy is suppressed. 

7. The whole Rocky Mountain region is made up of series of mountain ranges and 
valleys, with rivers, mountain streams, and springs, so that the public lands might be 
classified as irrigable, swamp, pasture, mineral, and timber, at least so far as Utah, 
Colorado, Nevada, Western Wyoming, Eastern Idaho, and perhaps Arizona and New 
Mexico are concerned, though as to the two last I cannot speak from actual observa- 
tion. The irrigable and swamp (or meadow) lands are confined to the valleys ; the 
pasture lands are the high "beuches" or uplands lying above the lines of feasible 
canals and below the pine or timber line on the high mountains ; and also those parts 
of valleys which cannot be reached by canals owing to the rolling character of the 
surface of the land. Such rolling in valleys I have noticed only near the northern, 
eastern, and southern rims of the Great Basin. The mineral and timber lands are 
about the same ; that is, mineral, excepting coal, is f ouud usually in the high mount' 



336 PUBLIC LANDS. 

ains, the mineral discoveries being made among the timber; but, of course, there are 
exceptional cases. As the rainfall is limited in the region indicated, and perhaps in 
Montana, while they have an abundance on the Pacific and Missouri slopes, I think the 
Eocky Mountain region from the British line to Mexico might with advantage to set- 
tlers and the government be constituted a geographical division, with the lands classi- 
fied as I have stated. 

10. In this regionl believe the meadow or swamp lands ought to be acquired by home- 
stead or pre-emption as under the present system, because they are the most valu- 
able, yielding a return from the time the settler " squats " on them. The reclamation 
of irrigable lands by canal and the payment of |l.25 per acre to the government 
should entitle every man to a quarter or half section where he makes the reclama- 
tion individually. Sales to canal companies should be governed in quantity by the 
capacity of their constructed canals. Such grants or sales should be made conditional, 
the canal companies being required to offer the land for sale to settlers in lots of from 
40 to 320 acres at a price to be fixed by the United States district land officers, who 
should be required to base such appraisal on, say, double the cost of the canal and 
$1.25 per acre on the tract reclaimed. Proof of the cost should be established by the 
company, and the settler should be made to establish his dona-fide intention of pur- 
chasing only for himself. The purchase price to be paid into the land office and a draft 
on the United States Treasurer issued to the canal company for the amount of the 
purchase-money, minus $1.25 per acre for the tract of land and the water right so dis- 
posed of, and such water right should be fixed at one miner's inch to the acre, or seven 
miner's inches to the acre once every week. 

AGRICULTURE. 

1. The climate is good. We have little or no rainfall from the 2st of June to the 1st 
of October. We have only two seasons, winter and summer, the later season lasting 
six months. The snowfall varies from 6 inches to 2 feet and is our source of irriga- 
tion streams. 

2. We really have no rainy season. Our irrigating season extends from the 1st of June 
to the 1st of October, and we have high waters from the 15th of May to the 1 5th of 
June, when the streams begin to fall and continue to diminish in volume until the 
weather g*ets cool — October. 

3. No portion of this country can be cultivated without irrigation, though the 
swamps yield hay. 

4. I should judge, excluding the pasturage, timber, and mineral lands, that all the 
valleys might be classed as irrigable lands, and the proportion of these to the whole 
region I guess to be a tenth. 

5. All the cereals and roots and the more hardy fruits are produced here by irri- 
gation. 

6. It will on an average require 500 miner's inches of water to irrigate 100 acres of 
wheat three times from the 1st of June to the 10th of July, but the same stream 
would under proper and economic regulations probably water 300 acres aud mature 
the crop. 

7. The rivers and mountain streams are the source of supply of irrigating water. 
Bear River in Cache Valley, the Logan, the Cub, and other smaller streams. The Snake 
River in Eastern Idaho would furnish a supply of water constantly sufficient to bring 
under cultivation between 75,000 and 100,000 acres of very good land lying on the 
east bank of said river and extending from the south fork thereof to the Black- 
foot River. 

8. Unless an irrigating stream is impregnated with mineral the process of irrigation 
enriches the soil by depositing thereon lime and alluvial soil, so that as a rule irriga- 
tion is also a fertilizing process. Oats can be raised at an altitude of (i,500 feet, wheat 
at 5,500, but this varies according to the season. 

9. All the water in the irrigating ditches is used during the summer and returned to 
the main streams after harvest. In Utah they have a very good system of irrigation 
laws. In Idaho there is no law on the subject — that is, not statute — though the com- 
mon law has been extended over the Territory by the legislature, and I presume that 
would determine a water contest. The common-hiw rules on water rights in this 
mountainous country I think are almost totally inadequate, because, if insisted on by 
the first settler on a stream, the stream could not, in a majority of cases, be utilized by 
subsequent settlers. 

10. In Idabo we are practically without either law or custom. 

11. The pick-and-shovel conflict has frequently arisen between the saintly brethren 
in Utah. 

12. At least one-half of this entire region is adapted to pasturage only. 

13. It is not, in my judgment, practicable to establish homesteads on pasturage lands, 
because the stock-raising business cannot be carried on by men of limited means. 
They find it necessary to join with it farming. Furthermore, stockmen in this country 



PUBLIC LANDS. 337 

are obliged to put up hay in sufficient quantity to " carry over " their cattle. The 
pasture lands yield no hay and are fit only for summer range, save in some winters 
■when the snows are light and the winds high, the hills are swept bare, and cattle win- 
ter out; but even then stock seek the valleys, and this habit indicates that the hills 
are no place for them in winter, and therefore no place for a homesteader on pastur- 
age lands. » 

14. In my judgment, these lands should be put in the market for public sale and not 
at private entry. These lands have very limited water supplies, or, as is more fre- 
quently the case, no supply of water at ail closer than five or six and sometimes even 
ten miles. Take a place, therefore, with a feeble spring of water, ten miles f com any 
other spring or stream, and allow a man to homestead this spring, and he henceforth 
holds the key to the entire pasturage lands for ten miles around him. If this spring 
and the range it commands were put up at public sale, say at from 10 cents to 30 cents 
per acre, the spring would sell the entire tract. Pasturage lands with mountain streams 
running through them would permit of smaller divisions, and such streams ought to* 
constitute division lines, so that purchasers could all get their stock to water. 

15. The average quantity of pasturage land in this section required to fat one beef 
for market, without ruining the pastures, is about 40 acres. This section is hardly as 
good as Colorado and Wyoming. 

16. Two hundred and fifty would support an average family without joining farm- 
ing with stock-raising: but the families in this country are more than average. 

17. I cannot guess. 

18. The growth of grass has diminished. 

19. The ranges are not fenced. Cattle cannot be confined by fences on the range in 
winter with safety. 

20. The quality of herds would without doubt be improved by confining them to 
specific ranges. 

•21. On the pasture lands proper the supply of water for stock is the small springs 
and mountain streams. 

22. The Commission made a mistake in asking this question. They should have 
asked, " How many beeves are equal to one sheep in grazing 1" 

23. The grass is killed out where sheep have been pastured. 

24. Cattle will not graze on sheep pasture, though the mutton is not particular as to 
who has been over the grass before him. 

25. If the sheep don't leave the cattle range, the cattle soon become so much reduced 
in flesh that they cannot get away. 

26. I cannot guess, and the people in this country pay no regard to such matters. 

27. I have this suggestion to offer about the Ross Fort Indian reservation in Eastern 
Idaho. This reservation covers the best agricultural and stock-raising portion of the 
Territory and covers an area not much less than the State of New York. I believe 
this tract of land is owned by about 1,200 Bannock Indians, who, if it were divided 
up equally between them, would each— every buck, squaw, and papoose — have a small 
dukedom. Is not that kind o' spreading on to poor Lo a little too thick ? 

28. Question not answered. 

JOHN C. YOUNG, 



Testimony of Col. Geo. L. Shoup, Salmon City, Idaho. 

Col. Geo. L. Shoup, who resides at Salmon City, Idaho, testified, October 2, 1879 r . 
as follows : 

Up in the northwestern portion of the Territory the land can be cultivated, but that 
I do not wish included in the estimate I make that one acre in seventy-five can be 
irrigated. The water supply, taking it on an average since I have been here, has been 
about the same. About four-fifths of the Territory is arid land ; about one-third of 
the arid land can be used for pastoral purposes. It takes about 25 acres for one beef ; 
that I consider enough. I owned about 3,000 head of cattle, but no sheep. It has never 
come under my notice, but from representation I should say that cattle and sheep can- 
not feed together. My county is fully stocked. The range is decreasing from over- 
feeding. If we owned the ranges we'could keep them up and improve the quantity and 
quality of the beef. The increase of 100 head of cattle will keep an average family 
very well. The pastoral homestead idea strikes me favorably. If it is established it 
will be necessary for the stockmen to decrease their herds, unless the government 
makes some provision by which actual settlers will be protected, by allowing them to 
purchase this land, or lease it, or doing something that will place the land under con- 
trol of the actual occupants. I think 10 cents per acre would be a very good price 
for this land. There is plenty of water. In that region everybody takes the water as 
they please. The rule in our section of country is that by making a location and 
taking the water from the stream and recording it in the county recorder's office a man 

22 L c 



338 PUBLIC LANDS. • 

gets a priority or right to that water, and no matter if he makes his ditch big enough 
to take in all the water, there is no rule requiring him to turn it back ; but it is local 
usage to do so. In some mining districts they have local laws compelling them to 
turn the water back into the stream. 

We have no sheep in Lemhi County. Ours is considerd a well timbered county ; one- 
half of it is timber land, all of which is pine. #We have no hard wood. We have big 
timber fires there, caused, I guess, by Indians, and occasionally by prospectors. These 
lands should be sold to actual settlers. If they were sold to individuals they would 
then have an interest in and protect them. It would be to their interest to do so. I 
would limit the size of the tract to be sold. I would sell it at a price depending upon 
its location. In our section the young growth comes up after a fire. There have been 
locations made under the pastoral law, and they have never paid for them. There 
should be a limit for paying for these placer claims. I have known instances, outside 
of our county, where a man selected a tract of land, working it enough to take it and 
then hold it for speculation. Lemhi County is the best watered county in the Territory. 

Yoke Fork, Bay Horse, Leesburg, North Fork, and other mining districts are in our 
section. It is a very good mining district. I think it will produce more than any other 
three counties in the Territory. We recently had local mining laws, but now our laws 
conform to the United States laws. A law should be made compelling a miner to pay 
up inside of two years. We have not had much litigation as yet, but we expect it is 
coming. What litigation we have is on account of relocations. In a district where 
the veins lie parallel the same trouble would occur under a square location that occurs 
now I think the charges in mineral surveys, &c, ought to be reduced. I think that 
all the business should be transacted in the district land office, and, just as in agri- 
cultural lands, all contests ought to be tried in the district land office ; but in many 
cases the land office is so far away that it causes a great many people trouble to bring 
witnesses. If a law was passed so as to permit proof to be taken in a mining district 
and certified to before the clerk of the court of record, cases could be tried in the dis- 
trict land office and that objection obviated. 

We have a splendid supply of water for irrigation if we need it. The altitude of the 
agricultural section of our county is from four to five thousand feet. The pastoral 
lands are above that. They are about 10,000 feet. The timber land is at about 10,000 
feet altitude. We can raise all the cereals and all kinds of vegetables. We can raise 
corn, but it does not mature well. Our supply of water is ample for all onr irrigable 
lands. 

If a man buys a mine I would give him the timber that stood upon it, but I would 
sell the land separately, and I would reserve all mineral rights to the government. I 
think the timber land should be placed under the control of the register and receiver. 
I l*ave but one patented mine iu Lemhi County, and it took two and a half years to get 
the patent after I had paid for it. I think the law should be amended so that when 
a man gets a register and receiver's receipt that it is his property. 

Idaho is a mineral and pastoral country. Our wealth lies in the mines and stock. 
There is no bunch-grass in our county. 

My views regarding the disposition of the agricultural and pastoral lands are these: 
Those portions of the land that are agricultural should be opened for pre-emption for 
agricultural purposes at $1.25 per acre. In making any change in the law I would 
reserve the irrigable lands and dispose of them under the present law. I do not think 
I would pass any law to assist companies in making irrigating projects. Cattle can 
be fenced with safety if the stock-owner could secure land either by lease or pur- 
chase. Very little timber has been cut off in our county. We have no surveyed land 
in our county. I think the whole of it might be surveyed. There are about one hun- 
dred farms in my county which have no title because the land has not been surveyed. 



Testimony of William M. Courtis, M. E., metallurgist, Wyandotte, Mich. 

The questions to which the following answers are given will be found on sheet 
facing page 1 : 

1. William M. Courtis, Wyandotte, Mich., metallurgist and mining engineer. 

2. Eight years in Wyandotte, Mich. 

3. Yes ; mining claims in Colorado. 

4. Have beeji in most of tho mining districts of the State examining mining proper- 
ties, titles, &c. 

5. Can't say after four months ; patent not issued yet. 

0. Have noticed the following case in location of coal land claim on unsurveyed 
land, viz : A located claim of 160 acres, having only one place (on account of steep 
mountain side) from which his coal could bo easily worked. B located adjoining 1C0 



PUBLIC LANDS. ' 339 

acres and had the township surveyed. When the town line is run it rearranges the 
claim lines so that B takes in A's dump land, which also happens to be the only good 
timber, making A's coal land valueless. B, however, to avoid a long lawsuit, compro- 
mised with A and pays about one quarter A's price before the lines were run. (Bunn 
vs. Smith, Crested Butte, Gunnison County, Colorado). 

Have also noticed in locating mining claims the following difficulty : A and B are 
friends, and each locate 1,500 feet on same lode, intending to adjoin and work in 
concert. The measurements are made and stakes set up by tape-line measurements. 
When the properties are surveyed for patent it is found that there is from 50 to 200 
feet between the claims not covered by claim notice on stake. This is either staked by 
surveyor or some camp loafer who makes it his business to follow round with the sur- 
veyor and locate such excess to force the parties to buy him out, as such small locations 
between are in the way, as he well knows. I think there should be a provision in the laws 
regulating location of mining claims, that if an excess is found between two claims 
caused by bona-fide errors in location stake the locators of those claims shall have sixty 
days to set new stake, each taking one-half, and the legal assessment on such piece 
shall be in proportion to the part of a full claim it may be. 

8. By general rules; but make the classes to take their name from the greatest value 
for the location. Postmasters should report to the land office discoveries of mineral 
in their neighborhood, so that lands held, say as timber land, could then be changed to 
mineral land. 

9. Think present laws are pretty good when not evaded. 

10. At present a legal residence is far from an actual settlement as intended by law. 
Persons and companies buy up the rights of others to enter land. Laws should be 
more stringent in denning " actual settlement." No experience on agriculture and tim- 
ber questions. 

LODE CLAIMS. 

1. As assistant manager at Van Buren Furnace, Shenandoah County, Virginia, 1869 
to 1871 ; metallurgist and manager of the Wyandotte Silver Works, Silver Islet ; mining 
expert and surveyor for the Silver Islet Mining Company, of New York ; mine in On- 
tario, Canada, from 1871 to 1875, 1878 to 1879 ; manager of the Duncan Silver Mine, 
Boston County; mine at Thunder Bay, Lake Superior, 1875 to 1878; superintendent and 
metallurgist of the Gage Hagaman Smelting Works, Leadville, Colo., and for the 
Iowa Mining and Smelting Company, of Crested Butte, Gunnison County, Colorado, 
same parties. Have made complete underground survey of Silver Islet, Ontario. 
Have examined the iron mine of Leadville as expert for trial, but was not present at 
trial. 

2. See answer number 6, page 2. 

3. Think no overlapping claims should be filed, but the right title decided at once 
as soon as overlapping survey is presented. * I own one-twelfth of the Muchichanock 
location at Leadville, Colo. Were first on the ground and worked continuously ; but 
have been surveyed over several times. In one case the parties were overheard to say 
all they wanted was a compromise and get what they could. We struck mineral of 
232 ounces on first contact, but are sinking to second, so as to hold against the parties 
that are working on our surface. I don't think the lode laws should apply to Lead- 
ville, as there is no lode, but a deposit separated from the porphyry wherever it is 
found ; not always rich in silver, but of the same nature in gangue. 

4. I understand the apex of a vein or lode to be the outcrop in the highest geolog- 
ical level, whether this is accidentally higher or lower than some outcrop caused by 
denudation or slip. This and the dip cannot be determined without fail without 
work ; but in most cases it can be. 

5. ,Not in the few cases which are abnormal. 

6. Yes ; but have only hearsay knowledge of all the circumstances ; and from what I 
know it has been more the intentional misunderstanding of jumpers or sharpers than 
real conflict between two bona-fide miners. 

7. Yes; at Eureka mine, Tintic, Utah. 

8. No. 

9. Claimed to be ; but I don't believe the so-called outcrop is really outcrop of a. 
lode, but the exposure of side of lode. 

10. Yes ; by the claim being located before the true course of vein was determined 
or could be. 

11. I think not. 

12. Such a case is claimed for the Iron Mine versus Silver Wave and others, too well 
known to need explanation; the trouble of all the mine litigation at Leadville being 
trying to make the peculiar mineral deposit there come under the head of a vein or 
lode. 

13. I think so ; but the trouble lies in parties claiming on one side or the other what 
is very doubtful. They should be made to prove their claim before any injunction 
could stop the work of the other party. 



340 PUBLIC LANDS. 

14. Such a provision should be retained for lodes or veins having a dip of at leas 
25°, but nothing less should b6 treated as a lode, except under special cases. 

19. Yes ; by far the best plan. 

20. Yes ; by far the best plan. 

21. Besides what have been noticed. Would have a provision that whenever a claim 
is located for the purpose of striking mineral not exposed on surface that claim shall 
be bounded by vertical planes of side and end lines, no matter what may be struck on 
claim, vein, lode or deposit. Where a claim is located on mineral outcrop the mineral 
from which extends in all directions from said outcrop, such claim shall be bounded 
by vertical planes passing through side and end lines. This shall apply also to beds 
that may have been faulted so as to present barren rock on one side but the bed has 
been rediscovered on that side at a different level, a geological fault being clearly 
proved. 

22. Yes , the time should not be less than two summers (as many places are not 
worked ir. winter) nor over three years in all. 

14. No i nineral deposit having a dip less than 25° shall be classed as a lode or vein 
unless it has two perfect smooth walls beyond dispute and cuts the country rock 
otherwise than parallel to its bedding, if the rock is sedimentary. The dip of a vein 
shall be its average. In case of dispute the proof shall lie entirely with the party 
making the adverse claim, who shall pay in advance to the land office the expenses 
of examination. If the claim is proved good to the proper officer of the land office, 
he shall then issue an injunction on the other party to stop his work of taking out 
mineral until the claim is settled. The case shall then be tried, and both parties 
bring their proofs before a land office court, formed to judge of all mining disputes. 
Such land office court shall comprise two lawyers and two mining engineers by pro- 
fession and one land office official ex officio. The four first shall be appointed by the 
President for life. The court shall hold its sessions at or near the place in circuit. 



Testimony of N. Armstrong, Glendale, Beaver Head County, Montana. 

N. Armstrong, of Glendale, Beaver Head County, Montana, testified at Butte Citv, 
September 28, 1879, as follows : 

I have heard the statement of Mr. O'Bannon, and I concur with it, except that I 
think the mining claims ought to be recorded in the district land offices. I think 
two years is sufficient to pay up on a placer or lode claim, and I think that the width 
of claims ought to be defined; that no district should be allowed to restrict the 
amount of a grant. I think the government allowances should be taken every- 
where. I am satisfied with the present United States mining law. I think that 
the local mining laws ought to be abolished. 



Testimony of Orville B. O'Bannon, attorney-at-laiv, Butte City, Deer Lodge, Montana. 

Orville B. O'Bannon, resident at Deer Lodge, testified at Butte City, September 
28, 1879, as follows : 

I have been in Montana since June, 1867. Formerly I was register at Helena, I 
am now a practicing attorney before the district courts in Montana. I have been 
pretty well over a portion of the Territory. My business has called me all through 
the country ; am conversant with the public lands and the land system. I think in 
the western portion of the Territory one-sixteenth of it can be irrigated. One-fifth of 
the lands in the western portion is timber. 

Montana is hardly an agricultural country ; it is a pasturage, timber, and mining 
country ; about three-fourths pasture. The future wealth of Montana will be min- 
eral and pasturage. I think that some law ought to be passed as soon as possible by 
which the title to the timber land should pass from the government to the individual. 
I do not think the government will ever be able to protect the timber lands ; only 
private ownership will do it, and I would put the jurisdiction of the timber in the 
hands of the register and receiver of the district land offices. 

Some classification should be made of the land, and the amount sold should be based 
upon that classification. I would sell it in tracts of 40 to :V20 acres, and I would pre- 
fer actual settlers to outsiders, and I would limit the rights of persons to one entry. 
I would charge according to the classification as to the amount entered. This classi- 
fication should be made by the deputy surveyor, uuder the direction of the surveyor- 



PUBLIC LANDS. 341 

general, and subject to approval by the inspector of classification. In mineral local- 
ities I would sell the timber subject to the mineral rigbts ; outside of the mineral 
rights I would sell it absolutely. I would sell a miner the timber on the top of his 
location, and would put the records of the mining claims in the possession of the 
county recorder. The title is tried at the county seat, and let the record be there 
also. If the records are destroyed let us do as we do in all similar cases, taking the 
most reliable testimony that can be obtained. I think that in all cases of actual pos- 
session of a mine or a mining claim such possession should be stated in the application 
before a miner is allowed to make an entry. I know cases of this kind where the 
man who originally owned a mine was compelled to make adverse filing on his own 
claim, because of its being claimed by some other person. I do not think it is the 
intention of the law to permit a man to file on a claim until he is in actual possession 
of it. That is the law now. I am in favor of a law to make claimants pay upon any 
sort of mining claim. I would limit the time under forfeiture. I think the size of 
the ground for dumpage and mills should be increased. Many men are compelled to 
beat around the bush in order to obtain sufficient ground for dumpage and mill-sites. 
I think all mining recorders' districts ought to be abolished, and that only one gen- 
eral United States law should be the governing law. I think all mining grounds 
should be settled upon before any patents issue. They are supposed to do so now, 
but they do not. I think there should be an inspector for all these surveys, after 
they are made and "before the parties doing the work are paid. I think the classifi- 
cation of the mineral land can be done better. Lands which are how called mineral 
are non- mineral, and settlers are put to the expense of proving the non-mineral char- 
acter of such lands. I think in case of any doubt whatever let them go into the min- 
eral classification, but if some method could be provided wherein all settlers in any 
township or any given part of a township could come, and in some cheap and easy 
method make one publication in order to prove the non-mineral character of the land, it 
would be well ; and when it is once declared non-mineral they could all file on it as* 
such. 

There are lands in the center of Deer Lodge Valley where there is no showing of 
mineral whatever. They are withdrawn from the market because they are classed as 
mineral land. 

The eastern portion of townships 614 and 714 near Phillipsburg is mineral, but it is 
settled upon as agricultural. This has got in a measure to be obviated by Ifaving a 
better class of men for deputy surveyors. 

I have observed the survey of land closely, and favor the retention of the rect- 
angular system to survey the land. I would suggest that better monuments be used, 
because the stakes are often quickly destroyed. I will cite a case of bad surveying. 
On June 15, 1872, I preferred charges to the surveyor -general, Mr. Blaine, against the 
deputy surveyor, who had executed the agricultural surveys in Deer Lodge and in Mis- 
soula Counties. There was no allowance of the convergence of the meridians on that 
section line between townships 8 and 9 north, and range 9 west. There is an offset 
of three or four chains where it should have been half a mile or more. It is shown on 
the map that Deer Lodge Eiver goes down township 8 north a quarter of a mile east 
where it enters township 9 north. The Deer Lodge River actually goes out of town- 
ship 9 north, one-third of a mile south of where it enters 9 north, 10 west. The Lit- 
tle Blackfoot River comes within the first-named chain half a mile south of where it 
enters the last named township. I cited other small discrepancies to the surveyor- 
general, charging there was good land to the topography in township 9 north, 9 
west, and in 9 north and 8 west, 9 north and 13 west, but no attention was paid by 
the surveyor-general. 

Then I preferred charges against the surveyor-general to the Land Office at Wash- 
ington, and they were returned with an indorsement that the charges were not worthy 
of consideration. This indorsement was put on by Mr. Dallas, of the Bureau of Topo- 
graphical Surveys. Mr. Curtis requested me to wait until Mr. Drummond returned, 
and he promised that a general inspector would be sent out, but it was not done. 
Three years ago I asked why this had not been done, the reply was the only man who 
was reliable enough to send was then in Oregon. I then carried the matter to Helena, 
but pending an investigation Mr. Blaine resigned and nothing was done. 

The settlers in this township were never able to make their filings upon this land, 
and at my advice most of them never entered their lands. There is evidence from 
citizens that they did not know where their lands were, owing to the bad condition of 
the surveys. Only one man of those who had filed on the land found himself actually 
in possession of the land he intended to occupy. He was one out of 13 settlers. This 
survey was made by William H. Baker, October of '70, and subdivided in December, 
'70. All the surveys made now by Mr. De Lacy are good, and I think they are all 
right. " 

The monuments of surveys ought to be of permanent character. The laws and reg- 
ulations and instructions now demand that, but the laws are not complied with. If 
the surveying instructions are complied with, that is sufficient. I think it will be a 



342 PUBLIC LANDS. 

good idea to place at every township corner a permanent monument of some kind. 
Mr. Kellogg, United States deputy surveyor, told me that he had run twelve miles 
before he found a corner. The settlers along the line of the river in this township, 9 
or 10 west, paid him $300 to find their corners for them. 

Question. What effect has irrigation upon the hearing capacity of the land? — 
Answer. It depends upon the situation, measurably, whether the capacity of the 
land is increased or decreased by irrigation. Where there is a fine loam, with clay and 
gravelly subsoil, it is ultimately injurious ; where there is a deep loam and clay sub- 
soil it is good. It takes less water where the soil is good. Water rights are held 
almost exclusively by possessory title. I do not know exactly what the law is in re- 
spect to water rights. I think it is very chaotic both as to mining and agricultural. 
About two-thirds of the water can yet be applied to the irrigation of land by a system 
of dams in the mountains. By such a system the capacity can be at least doubled. I 
think there ought to be some general law passed by Congress in relation to the mat- 
ter of irrigating and every facility offered the citizens for the development of irriga- 
tion, but I am not in favor of a national system of irrigation. I think some law ought 
to be passed by which title to the pasturage lands can be acquired on easy, nominal 
terms. Mr. Concourse, a large cattle owner, says that on an average the pasturage 
lands in Deer Lodge County are worth to him $1.25 per acre. He and his brother en- 
tered 640 acres under the desert-land act, and if there was any law by which he could 
do it he says he would enter 5,000 acres of land — that is, of land adjacent to that 
he now possesses, which I think is better than the average. I think the entry of one 
entire section ought to be allowed for pasture purposes. I do not believe in selling 
these lands in unlimited quantities, because I think the pre-emption and homestead 
entries should be continued for some time longer. I hardly think this land is worth 
for pasturage purposes $1.25 per acre, but if I had the money I think I could find a 
body of contiguous land, 10,000 acres in extent, of what is called arid land, in Deer 
• Lodge County, that I would pay $1.25 for. 

Under the infamous railroad grant we are cut down to each alternate section at a 
cost of $2.50 per acre, and that makes it $400 for a homestead, and the fees to make 
non-mineral proof, &c. 

Agricultural entries in each case cost a man about $70 or $80. I think the pub- 
lication of notice is the most ridiculous thing in the world. In the notices there is no 
time given when the claim is to be made, so that it is really no notice to a man to 
issue a protest. I think a man should have aright to protest after the entry is made, 
before proving it and before the patent is issued. I think one land office at the capi- 
tal (of the State or Territory) would be sufficient, with some modifications. The 
proving might be done somewhere else, except the pre-emption affidavits. I think a 
man ought to be allowed to prove up without going to the land office. 

The attention of Congress should be called to our terrible situation in regard to the 
Northern Pacific Railroad claims here. For ten years one-half of our land has been 
withheld from the market, and our citizens have been compelled to pay double prices 
for the remainder. Eighteen sections are given to the railroad and two for school 
purposes, which leaves only sixteen sections in a township open to pre-emption and 
settlement. This works great detriment to the settlers, and a person filing a declara- 
tory statement cannot cross a township section line because of the railroad grant. It 
will be better if all railroad land were shifted to one side of the railroad, so as to make 
the government and the railroad lands each contiguous. If the charter of the North- 
ern Pacific Railroad is extended^ it should be upon the condition that this land pass 
into the charge of registers and receivers, and let them allow cash entries on these 
lands at a price not to exceed $2.50 per acre, and when the railroad has complied with 
their promises let the money realizedfrom the sale on these lands be given to the rail- 
road. 

I think there ought to be more expedition in the issue of patents, both in mineral 
and agricultural claims. I think the fees of the surveyor-general's office are too 
large, as a man filing on timber or agricultural claims would not have to pay so much. 
I do not think that mining claims should be excepted. There ought to be something 
definite. I would suggest that the money be refunded to the claimants when they 
obtain their patents for mining claims. 



Testimony of John Caplice, Butte City, Deer Lodge, Mont. 

John Caplice, of Butte City, Mont., testified, September 28, 1879, as follows : 
I have heard the previous statement of Mr. O'Bannon, and concur, except that I favor 
the recording of mining claims in the district land office, and think two years a suffi- 
cient limit for paying up. 

Concerning the old claims I find injustice in the present law. My mining difficulty 



PUBLIC LANDS. 343 

They could administer the laws better than an outside agent. There is a much larger 
scope of this country that is capable of agriculture than is supposed. My impression 
when I came here was that a very smalljpart of it was fit for agriculture ; but the 
prospectors in the south and west are showing up considerable areas of arable land. 

Q. How would you prevent this laud from being taken up as pasturage land at a 
low price ? — A. I would reserve the arable portion from private sale and dispose of it 
under the homestead law. I would abolish the pre-emption law. 

Q. Why? — A. Because the homestead law has a pre-emption feature in it already. 

Q. How could you classify the land ?— A. That could be done by the deputy surveyor 
and the geologist, who should be appointed to go along to classify the land. 

Q. And how could you determine just what was irrigable land ? — A. Wherever there 
was water accessible the surveyor would know that so much of the land near by was; 
irrigable. 

Q. And how could you make a practical division so that these gentlemen here by 
looking on this map would know what is irrigable and what is pasturage ? — A. From 
the information collected by the surveyor in making his plats I would have the draughts- 
man simply note — say, here is a section — I would have him note that this 40 acres is 
arable, at $1.25 per acre ; this 40 acres is timber, of commercial value, so much per 
acre for that j and that 40 acres is, perhaps, grazing land, and another 80 acres may be 
arid or be mesa land. In subdividing they run around the entire section, and they can 
form a pretty good opinion of the entire section from the observations they then make. 

Q. You would have this classification made by the deputy surveyor and the geologist 
appointed to go along with him, who would measure the streams, and determine how 
much water there was in them annually, and then mark the limits to where the water 
could be carried ? — A. I think he could determine that approximately by his eye. If 
he made a mistake and it is not arable, still I should classify it as arable, for there is 
a probability of its being so. I require them to measure the streams now, and their 
notes show everything — the depth, height, &c. 

Q. Suppose it should turn out that there is not water enough for all this land that 
you have determined to be irrigable, and you sell it to citizens of the United States 
and it turns out afterward that there is not enough water ? — A. Well, it is their look- 
out. If they buy something and pay $1.25 for it, and it does not turn out as they ex- 
pected, it is their lookout. 

Q. But you classify the several pieces of land for the citizen ? — A. The citizen should 
go and make an examination beforehand. 

Q. If the government undertakes to sell a piece of land as irrigable the government 
ought to know whether it is irrigable or not, and it takes the money of the citizen 
under the supposition that it is irrigable, does it not ?—A. They do under this system. 

Q. Suppose a man buys land low down on the stream as irrigable land, and pays for 
it ; along comes another man who buys land higher up and takes all the water. How 
would you arrange that ? — A. That is something I have never thought of. 

Q. What is your present law of water rights here ? Does the first man who occu- 
pies the land take all the water, returning such as he does not need to the stream 
again ? — A. Yes ; that is the local law here, I think. 

Q. Do you think that there will be any difficulty in adjusting these conflicting in- 
terests and conflicting rights ? — A. There might be eventually, perhaps, something of 
that kind. You cannot have any general law that will not operate harshly in some 
instances. Wheu the government makes this classification of land I go down there to- 
make my settlement near the mouth of a stream or valley. I take my chances of set- 
tlers coming in above me and absorbing a good portion of the water. That is some- 
thing I don't think you can regulate. You can only have a general rule, that the 
water shall not be wasted. 

Q. Why shonld the government not sell a man the water right, when it sells him 
160 acres of irrigable land ? It is known how much water is wanted for a certain 
quantity of land. Why not let this water right run with this land forever ? If the 
government finds that it has not enough water in the stream, let them stop selling the 
land as irrigable land, and sell the balance as pasturage land. — A. Perhaps that would 
be a good idea. I have not given that subject any consideration, and can only jump 
at a conclusion. 

Q. Do you think a general system of irrigation ditches could be constructed in this 
Territory with profit ? — A. I think they could in some sections — on the Pecos and Rio 
Grande Eivers. There is an immense area that can be irrigated there. 

Q. Does it destroy the land, or improve it ? — A. Irrigation improves the land ; it en- 
riches the soil. 

Q. Does it increase or destroy the growing capacity of the land, year by year? — 
A. That I cannot say. They have raised here, for years and years, crops, without fail 
and without fertilization. 

Q. Don't the grazing capacity of the land decrease, year by year ?— A. That depends 
on the size of the herd. 



344 PUBLIC LANDS. 

assessing these lands, to make them, pay at least a tax on the land on a basis of two 
dollars and one-half an acre, so that they would either perfect the title or abandon it, 
and thus give some one else a chance. Unless they are made to pay in some way or 
other they will hold it for an indefinite time. I know of two cases where tracts of 160 
acres each were taken up under applications for placer claims and. used for agricult- 
ural purposes. They were not mineral ; there was no mineral on it at all. If they 
had made application for these lands as agricultural lands they would have had. to 
prove up, which they did not have to do in their placer- claims application. 

I think all mineral claims should be filed in the district land office, and the record 
be first made there ; that is the very best place where it could be done. The title 
would then be always perfect and could not be manipulated. I believe in square loca- 
tions. 



Testimony of William Davenport. 

William Davenport testified, September 27, 1879, at Helena, Mont., as follows : 

I have lived here since 1864. I am engaged in the sheep and cattle business. My 
lierds are in the Sun River range, about 70 miles from here. 

As to the destruction of the grass by sheep, it all depends upon how close they 
are compelled to feed. If they are limited in their range, they feed the grass so close 
that they kill it. I have from twenty to twenty-five hundred cattle and from seven 
to ten thousand sheep. 

As to the quantity of land it will take to feed a beef, I cannot say accurately from 
my knowledge on that point ; but I think it will take to feed a beef about 30 acres, 
and I think five sheep are equal to one beef in the matter of feeding. I have never 
made any particular observation in regard to the matter. 

The way we arrange our grazing is this : we bring our sheep up on the home range 
until the winter season is over, and we leave it as ^soon as the grass comes in the 
spring, and then we shift the range. Our sheep graze, say, over sis miles over our 
winter range ; that would make about six miles square that our sheep graze over ; that 
is, a herd of 3,000 graze over these six miles square. It takes about that amount of 
grazing land to keep these sheep well. We feed them hay sometimes. I have cattle, 
but do not keep the cattle and sheep together. If I confined my sheep more than 
that, it would destroy the grass in time, and if you keep the sheep on that range year 
in and year out it would destroy the grass. That is not so much the case with regard 
to cattle, and this is the argument for large ranges. 

There are some conflicts between cattle and sheep men, and eventually they will 
prove very disagreeable. 

I think' these grazing lauds ought to be sold and a title given to the stock owner. 
I would sell it for ten cents per acre, and give a man all he wanted for his cattle 
herd. I would sell the land in proportion to the amount of stock a man owned. 

I think the actual settler ought to be protected, and that this land ought to be 
divided up into some kind of shape that would protect the small cattle owners. I 
think it would be well to have a pasturage homestead law. There is just this point 
in regard to the agricultural and grazing lands. There is a very small proportion of 
land in this Territory that is suitable for agricultural purposes. There is ground 
enough, bet there is no water to irrigate it with. 

There is an 'mmense amount of grazing land in this country. The whole Territory 
is covered witn Trass. These lands are not fit for anything but grazing. I think the 
government worn. 1 be benefited and the people themselves by acquiring title, so that 
they could make permanent homes in the Territory. The government would then 
derive some revenue from the sale of this laud, and the result would be a permanent, 
healthy growth of the country. 

The greatest need we have here is people. 

I have no idea how many cattle there are in the Territory, but I think that the 
wealth of Montana will consist in the future of the stock-raising interest. 

My opinion at present is that agricultural pursuits, raising grain, &c, do not pay in 

this Territory. I think if these grazing lands could be .settled up that then .there 

would be consumers for the products ot the agriculturist. I think the rainfall is in- 

ing slightly here, but not enough to amount to anything. I don't believe in 

waiting for any climatic changes to settle these matters. 

I cannot say anything about the timber lands, for 1 do not know any thing about 
them. 1 think the wealth of the country lies in the bunch-grass. There is no real 
water system ; it is too chaotic. All the lands used by stockmen are held by common 
consent. 



PUBLIC LANDS. 345 

Testimony of A. J. Davis, Butte City, Deer Lodge, Mont. 

A. J. Davis testified at Butte City, September 29, as follows : 

I have lived in the Territory since 1864, off and on. I have lived in several counties. 
I think the mineral and pasturage interests are the two greatest interests of the Ter- 
ritory. 

Agriculture, so far as the home market is concerned, is of course of considerable 
interest ; but when we get two railroads here to ship products to the East, we will 
find we cannot compete with other States and Territories. 

I do not think more than one-twentieth of the Territory could be irrigated ; proba- 
bly one- tenth is timber, but in the eastern portion of Montana timber is very scarce, 
while there are valleys which are remarkably heavy with timber. I think these tim- 
ber lands ought to be held by the government, and allow every person to go and use 
the timber for domestic purposes. 

I would allow a person to use the timber for domestic purposes that would tend to 
the improvement of the country, without purchasing it, and without licensing people 
to go on the timber land. 

If there is to be any jurisdiction over the timber lands, I think the register and 
receiver would be the person to have that jurisdiction. If the government concludes 
to sell these lands, I would sell them in tracts not to exceed 160 acres, without it was 
to parties who consumed large amounts of timber in the way of mining interests and 
saw-mills. 

My idea is to protect the actual settler here. In selling the timber the price should 
be regulated by the quantity, and the price should hardly exceed $2.50 per acre. Many 
portions of it would not be worth more than fifty cents per acre. 

I do not think there is much destruction of the timber now by fire. Fire is the 
worst cause of its destruction. There is less fire now than formerly. I think one- 
half the timber could be trimmed out with more profit to the remainder. I think if 
the fires are kept out of the timber it will grow, and it would be a good idea for the 
government to retain every alternate section if they propose to sell it, though I think 
it would be the better way to let the timber remain as it is. If it were all cut off I 
think it would grow again large enough for mining and farming purposes, such as 
fences, &c, in forty or fifty years. 

I' have noticed the rainfall, and I think it has increased. I do not think the open- 
ness of the climate has increased ; I think it has been milder for the last few years. 

The great body of the water comes here in the spring, and for the last few years 
it has been at a season of the year that has enabled us to raise crops without irrigation. 
We have had in the last three springs a great deal of rain. In many instances the 
rain has fallen at the time needed for the raising of crops. 1 think it would be better 
if we had some national law by which we could take out large ditches, and the gov- 
ernment should offer a consideration for the encouragement of this industry. In Jeffer- 
son County, and a portion of Lewis and Clarke Counties, there is a large portion of 
land, some of it very valuable bench land, that might be irrigated by making exten- 
sive canals. It depends upon the soil whether the water will destroy the quality of 
it. If it is a subsoil, it injures it ; if it is a clay, the water is held. I do not think it 
is any use to base any hopes upon an increase of water in Montana. 

Four-fifths of the Territory is properly arid land, and for men of limited capi- 
tal probably the pasturage homestead may be a benent ; but for persons of large capi- 
tal who have 10,000 head of cattle that kind of a homestead would be of no use. At 
the same time a man who has a large herd of cattle wants some protection, and I 
would not sell these lands. I think the government had better hold them to lease 
them. 

Give a man a right to use this land in proportion to the cattle he has, for a term 
of years with the privilege of renewing that lease. 

If these lands were sold, I think either from 8 to 10 cents per acre would be an am- 
ple price for them. Of course there are some choice spots that would be worth more. 
It will take on an average 20 acres of this land to sustain one beef, and in a very 
few years if you pasture this bunch-grass closely it will decrease. The seeds are eaten 
off and the growth is retarded. If a man has a large tract of land he could increase 
his rauge by moving his cattle at stated times from place to place, so as to prevent his 
bulls serving his neighbor's cattle, and the quality of beef would be improved. As 
his herds increased his laud could be increased. Montana is not one-tenth stocked 
with cattle yet. Something should be done in this matter before the people begin to 
come in rapidly, and I think the scorer it is settled the better, and the mining dis- 
tricts are a convenience to the miners. It saves them the traveling, while it would be 
safer to make the final record in the district land office, because if a copy of the appli- 
cation or registration is forwarded to Washington if the records are destroyed here they 
have got them there. I understand that the records of the Summit Valley mining 
district, in which are situated all the mines of Butte, are all destroyed. They were 



346 PUBLIC LANDS. 

kept by a mining recorder in the raining district, and I understand that there is a 
number of mining patents in Washington that will not issue until these records are 
found. I think the present United States law in regard to surveys is sufficient. There 
is one amendment I think would be well. Where two claims are adjoining and par- 
allel there are sometimes little fractions between the two mines. If one party has 
secured his patent or made his application I think the second party ought to have the 
right to come up to the first party's lines and take in the small fragment. The gov- 
ernment sells that land, and it has often been a channel of great annoyance. The 
present expense of getting a patent is very high. The miner pays $5 per acre for a 
mine, while the agriculturist pays but $1.25. The latter has also his land surveyed 
for him and he pays nothing for his application, while the miner pays $30 to the sur- 
veyor-general, and the other charges are also very high. It costs in the neighborhood 
of $300 to pay for the survey and make his proof. I think the cost of survey, wher- 
ever it is done, should be deducted from the cost of the land, and I think there should 
be more deputy mineral surveyors. Every district of any importance should have 
one. These mineral surveys are very fairly done. 

C. T. Meador. I would like to make a remark concerning square locations. The 
square-location proposition would be suicidal. If the government would allow us to 
take as large an amount of land as the Spaniards did, we might be willing to take the 
square location ; but most of the improved mines in the Territory would go out of their 
side lines at 1,200 feet. That is the case with all of the best mines at Trap Hill. 

John Caplice. And if you make a square location you destroy the mining interests. 
Just as a man puts up expensive machinery he runs out of his side lines, and he is cut off 
by some other man who pre-empts a claim next to him. Take the Alice mine, for in- 
stance ; you go down that mine and you will see longparallel veins or seamsof ore which 
are 50 feet apart and all of the same size. Under the square location a man might be 
entitled to a dozen mines at once. 

A. J. Davis. The present l#w seems to be avery good one, with one exception. I 
think we ought to be entitled to follow the dip of the vein, but the law as regards spurs 
and angles ought to be the same as it was under the old Mexican law, which cut off the 
spurs and angles. I think the law ought to go back to what it was before. The old law 
was better in that respect than the new one. If that were done, I think our law would 
be as good as there is any necessity for. I think the present law ought to be modified in 
regard to mill-sites. Underthe present law you cannot take up a mill-site without prov- 
ing it to be non-mineral. That is almost impossible. Take the land here for over ten 
miles and you will find some mineral deposits throughout the country. Yon cannot go 
anywhere, scarcely, without finding mineral of some kind, although it may be in very 
small quantities. Hence you cannot swear it is non-mineral. I think the only require- 
ment the government should make is that there shall be no mineral of any value on it. 
I think there should be more than 5 or 10 acres — there should be 40 or 50 acres— for 
this reason : if a man is confined to 5 acres, that is not enough to stack his ore on and 
build his warehouses, &c. If you have 40 acres you can place your buildings at proper 
intervals and have a place for your tailings, &c, and keep other people off. If all such 
subterranean rights were retained by the government, it would remedy the defect. Of 
course in mining underneath such land it must be done subject to the vested rights of 
the mill owner. I think there ought to be a period fixed by law within which the miners 
should be compelled to pay up on their placer or lode claims. I should fix that period at 
two years. A large amount of valuable land is simply held by speculators, without 
working, and this is much to the detriment of the country. This sort of thing has 
greatly injured Montana. 

C. Clarke. If a man pays up for his mine, I do not think he should be compelled to 
"represent." There was a decision of the courts on that point, but it is generally under- 
stood with men who have valuable property that rather than run any chances they had 
better go on representing. The law should be so amended that when a man pays for his 
land aud gets a receipt from the register and receiver, that such receipt should be as 
final as if it were a patent, and he should not be compelled to go on representing after- 
wards. The law is ambiguous as it is, and while the officials decide one way the courts 
decide another. The miner should not be compelled to take any chances on it. The 
mineral law says that there shall be representation until the patent is issued. 

A. J. Davis. I think that there is a great deal of unnecessary delay in patenting. I 
think these patents should be issued sooner, and I think they ought to issue them 
without requiring the payment of $25. 

C. P. Meador. If I send a fee to a lawyer in Washington I get a patent right away; 
but if you do not, you wait two or three years. 

A. J. Davis. A gentleman told me that he followed his papers to Washington and 
got there just after the papers arrived, and in twenty-four hours he secured a patent. 

C. Ci.ark. There is a patent in the office at Helena that has only just arrived after 
two years, and yet the papers were all sent in properly and straight. 

There is another point in connection with this matter of mineral patents. The Land 
Office has decided that a claimant can't make continuous proof by an attorney in fact. 



PUBLIC LANDS. 347 

I was away last summer and my brother, who was my attorney in fact, transacted 
some mineral business for me, but they returned all the papers to me to be corrected. 
After the location has been made by the person himself, all other matters should be 
allowed to be transacted by the attorney in fact. 

A. J. Davis. I see no reason why the Commissioner of the General Land Office should 
require three certified copies of location, and I think the registers and receivers of the 
local land offices and the surveyor-general should have seals to put upon their official 
papers. 

Question. What is the law concerning the water rights here ? — Answer. I think there 
is a statute concerning the water rights but it does not amount to much. 

I think all contests up to the point of obtaining patent should be heard and de- 
cided in the district land office. This would be a protection to the poor man. There 
is no reason why mineral contests should not be decided in the district land offices, 
where homestead and pre-emption contests are settled. Of course this should not de- 
stroy the right of appeal from the decision of the respective officers. 

The yield of the camp has been between two and three millions since it was struck 
and I think averages about $125,000 a month ; I think it could be increased to about 
a million a month. All the titles of this camp which have been recorded in the office 
of the mining recorder have been lost. I have to send forty miles to the mining re- 
corder's office and it would make no difference to me if the records were kept in the 
district land offices, I would j ust as lief send to Helen a, Mont. Many mineral claims have 
been filed on fifteen or twenty times. This mineral recorder's office does not prevent 
this, but the district office would, for the government officers would not allow one fil- 
ing to be made until the previous one had been voided. 

The following gentlemen being present concurred in the statement of Mr. Davis: C. 
T. Meador, mine owner; N. Armstrong, mine owner; C. Clarke, mine superintendent; 
W. A. Clarke, mine owner ; D. M. Evans, superintendent Lexington Mine ; P. Largy, 
mine owner ; J. Rosenthal, mine owner, and J. Caplice. 



Testimony of Balston Deegan. 

Ralston Deegan, Helena, Mont., testified, September 25, 1879, as follows: 

I have lived here since 1866. I am in the cattle and stock raising business. They 
range in the Spokane range of mountains. I think it will take back in the mountain 
ranges 20 acres, and in the lowlands it will take 30 acres to raise a beef. 

The water rights here are pretty well taken up. In this vicinity it is overstocked, 
but in the northern counties it is not overstocked, and this is a very good sheep coun- 
try. I think that about five sheep will equal one beef. This I consider a fair average. 
The ranges decrease by feeding, because the cattle do not permit the grass to head and 
the seed to fill. We have here buffalo grass, and blue joint and red top. 

If a man were permitted to own his land, he, either by herders or actual fencing, 
could then guard his ground and sow grass. I think the wild grasses are much the 
best and strongest for cattle, but if cattle could be allowed to rotate I think it would 
be better for men to own their own land. I think these grazing lands ought to be sold 
at a low figure. I like the pasturage homestead idea very much for the small dealers, 
but I think the larger ones ought to be allowed to purchase in excess of the pasturage 
homestead, in proportion to the amount of cattle they own. I would allow the actual 
settlers to have the preference. I think in the hills there is a portion of the land 
which is grazable and on some land there is no grazing at all, say one-third of it. I 
would take 10,000 acres at 10 cents per acre ; that is as much as I Avould want in this 
country. This country is only fit for pasturage, mining, and timbering purposes. It 
will never be anything but a grazing country. A country that requires irrigation will 
never be a very extensive agricultural country. 

Wheat is sold here for 50 cents per bushel and sometimes for less. There is no money 
here in agriculture ; you take new land here and you raise a crop for one or two years, 
and then it is all played out. I took up a claim here last summer ; it is entirely sur- 
rounded by water. It is so low that three months in the year the mosquitoes and flies 
are so bad that one cannot live there, and in such a place as that you cannot raise 
anything — not even a potato. It is only fit to cut hay off of. I filed a homestead on 
it, and I think I should be allowed to make final entry ; but the land office ruled that 
as I had not lived on it five years I cannot make final entry, although everything is 
all right. This land was not surveyed but I had it surveyed at my own expense. 



348 PUBLIC LANDS. 

Testimony of C. Edwards, Bozeman, Gallatin County, Mont. 

1. C. Edwards, Bozeman, Gallatin County, Montana, breeder of sheep, cattle, hogs 
and poultry ; am a farmer. 

2. More than fifteen years. 

3. Have acquired title to 320 acres, 160 each by pre-emption and homestead. 

4. None aside from my observation in this Territory. 

5. Don't think I understand the purport of the question. Final proof is made in 
conformity with the law under which the land may have been entered, and from one 
to two years may elapse before the applicant receives a patent from the General Land 
Office ; the distance necessary for applicants and witnesses to travel from some sec- 
tions to the land office in this Territory makes the expenses quite heavy. 

6. Think in some instances if applicants and witnesses had been more conscientious 
patents could not have been obtained. Cannot suggest any alteration of the homestead 
or pre-emption laws that would remedy such abuses. Think the desert-land act ob- 
jectionable in every respect, and believe that the best interests of Montana demand its 
immediate repeal as far as it affects this Territory, for the reason that any land that 
can be taken in conformity with the desert-land act is equally available for pre-emp- 
tion and homestead entry. 

7. The lands of Montana may be divided into timbered lands, agricultural, pastoral, 
and mineral. 

8. Do not feel competent to offer any suggestions. 

9. The present system of subdividing land into 40-acre lots is in my opinion as good 
as could be adopted. The requirement of non-mineral-character proofs in some sec- 
tions makes unnecessary expense to the claimant, but I could not suggest a remedy. 

10. I don't think the present homestead and pre-emption laws can be improved, 
and I am decidedly of the opinion that the best interests of the masses of the people 
and of the general government are best subserved by restricting the acquisition of 
titles to public lands to the present homestead law, or some laws similar in character, 
for the reason that in my opinion the parceling out of the public lands in a manner 
that will afford good homes to the largest number of families is directly conducive to 
the best interests of the nation. Montana has large tracts of land that are now used 
only for pasturage that in the near future will no doubt be converted into homes by 
thrifty, enterprising settlers, who will be content to pasture stock during the summer 
on free pasturage and feed them during the winter ; and if these tracts of country are 
beld by the general government until they are taken under existing pre-emption and 
homestead laws, they will make of Montana a more populous and wealthy State and 
yield a greater revenue to the natioual Treasury than they possibly can if disposed of 
in any other way. 

AGRICULTURE. 

1. The climate is considered arid, but more water falls here than in many portions 
of the plains and mountain counties of the West. Rainfall in Montana ranges from 
21 inches to 25 inches. The average rainfall of the greater portion of the Territory 
is, as near as I can learn from the most reliable data, between 23 and 24 inches, and 
has never fallen below 21 inches during the last twelve years ; this includes the snow- 
fall, and the relative proportions of each I am not able to state. 

2. We have rain in April, May, June, July— the greater portion in May and June. 
There is seldom a year that rain falls sufficient in July to fill spring wheat ; but the 
opinion is growing in favor that fall wheat, sowed in August, will yield big crops on 
the most of our bench lands without irrigation. 

3. Comparatively speaking a very small proportion of the entire area. 

4. It would be difficult to state with any degree of accuracy. 

5. Wheat, oats, barley, corn in some sections, potatoes, onions, cabbage, beets, tur- 
nips, and a large variety of vegetables in general. 

6. The amount actually necessary will vary in accordance with the lay of the land 
and the character of the soil. I have never studied the subject closely enough to de- 
fine an answer in inches. I am of the opinion, however, that the average farmer of 
Montana at present uses less than " a cubic foot per second" (see report of Maj. J. W. 
Powell in charge of United States Geographical and Geological Survey of Rocky 
Mountain Regions) in a great many cases. 

7. Tributaries of the Missouri and the Marias, and the tributaries of the Columbia 
' that rise in Montana. 

8. Have raised crops by irrigation for fifteen years in Montana ; don't think the soil 
is injured by irrigation. Our highest farms are about 5,200 feet above the sea. 

9. Ordinarily all of the water that runs into the field in the ditches stays there until 
it goes out by seepage into underground channels or by evaporation. The laws of Mon- 
tana would seem to grant to the appropriator of the soil for agricultural purposes the 
use of water for irrigating, to make such land available for the purpose of agriculture 



PUBLIC LANDS. 349 

to the full extent thereof, giving preference in all cases to the priority of the claim. 
I don't think I comprehend what you mean by "waste" water. 

10. In the sections of the Territory where farming is most extensively carried on the 
water of the smaller streams, which is most easily utilized for irrigating purposes, has 
generally been appropriated by settlers to its full capacity. Governed at first by local 
laws, which have since been embodied into statute law. 

12. Can't say. Much of the land now used only for pasturage in my opinion, which 
is based upon practical experiment, will raise good crops of fall wheat without irriga- 
tion by using a subsoil plow. 

13. Not advisable at present. Montana is too new, and too small a part of the lands 
that will make good homes for the masses of the people have yet been taken. 

14. No, it is not. 

15. Some stockmen with whom I have discussed this subject think that it will require 
about 12 acres. But we have never yet been compelled to give this subject much 
thought on account of the vast amount of grass and comparatively few stock. This 
applies to Montana at large. 

16. Stock cattle are worth about $14 per head, and it is estimated that the average 
return from a herd is about 25 per cent, per annum. 

18. Diminished. 

19. No. In some sections they can be confined. Any range, as long as it is a good 
winter range, might as well be fenced as otherwise. 

20. Can't see that it would. 

21. The Gallatin and Yellowstone Rivers and tributaries. 

22. About eight or ten. 

23. Diminished. 

24. Yes. 

26. About 20,000. Can't say about cattle ; they are not herded. From 15 head to 
4,000 head in a herd. 

27. That the government disposes of its lands only under the present homestead and 
pre-emption laws, which now nets a clean profit of 9.3 per acre clear of all expenses 
(New York Semi- Weekly Tribune, November 18, 1879, page 10), and provides full and 
ample protection to every citizen in the peaceful enjoyment of life and property. 
This policy adopted and rigidly pursued will develop the mountain wilds of Montana 
into a wealthy and populous State. 

28. Yes, a great deal. 

TIMBER. 

1. So much that it is hard to say— fir, pine, spruce. 

2. None worth mentioning. 

3. In the most of the valleys in Montana a very narrow strip of timber along the 
foot of the mountains is all that is any way accessible ; a few acres of this might be 
sold, but, in my opinion, would have a tendency to retard the settlement of the valleys, 
except perhaps in some portions of the Missoula Valley. I cannot suggest any plan by 
which the prospects of the general government would be brightened in the sale of 
timber land in any of the inland mountain Territories. 

4. I would let them alone just as they are. 

5. So far as I have noticed (my observation is not limited on this point) there is a 
second growth, of the same character as has been chopped or burned off ; its growth 
varies in different lands. 

6. Forest fires are almost unknown since the whites took possession of Montana. My 
own inclinations are to the belief that they are the result of carelessness by campers 
either whites or Indians, for the most part, although I have no doubt that in some 
instances they are caused by lightning. 

7. There are no railroads in this Territory for domestic use. The difficulty of get- 
ting timber out of the mountains is such that generally what is not fit for building or 
fencing is used for fire-wood, and as far as I have observed I feel safe in saying that 
there is less waste of timber here than in some of the States. 

8. We go and cut timber when we want it wherever we find it to suit our purpose 
best ; I have known of very few instances of timber being cut to hold it, and that has 
been in an excitement at a new mining camp, but in no instance to any great extent. 
Timber once felled is supposed to belong to the party who chopped it, and his rights 
are generally respected until it would seem evident that he has abandoned it. 

9. Don't think any benefit would be derived from it at present. 

C. EDWARDS, 
Bozeman, Mont. 



350 PUBLIC LANDS. 

Testimony of Wesley P. Emory, miner, Butte City, Deer Lodge County, Mont. 

To Piiblic Land Commission : 

I beg leave to submit the following answers to some of the questions propounded by 
you. Questions answered under the different headings will be named and numbered. 

1. Name, Wesley P. Emery; residence, Butte City, Deer Lodge County, Mont. ; occu- 
pation, miner. 

2. County, five years ; Territory, sixteen years. 

3. Yes. A quartz mine. Under the United States mining laws. 

4. What I have seen and the experience of others. 

5. From my own knowledge and the actual experience of others, from three months 
to four years for an uncontested claim for quartz or placer, depending on whether an 
attorney is paid to hurry up the claim at the General Land Office at Washington. 
For a contested claim the time depends a good deal on the courts and is indefinite. 
For a quartz claim on surveyed land, from $140 to $175 and the entry fee of $5 per 
acre for the amount applied for. For placer on unsurveyed land, same as quartz on 
surveyed land and entry fee. For placer on surveyed land by legal subdivisions, $60 
and entry fee of $2.50 per acre for the amount applied for. 

6. Yes. The desert-land law should be repealed and the lands only disposed of to 
actual settlers ; under it the best land in the country is being taken up, both grazing 
and hay land, and the land is not settled on at all in most cases, and the result is a 
large tract of land held for speculation. In all cases that have come under my obser- 
vation so far, small streams of water which flows naturally through the land is diverted 
from the stream for a few rods and application made for patent as reclaimed desert 
land. 

7. Valleys, bench lands or foot-hills, and mountains. Valleys are farming lands ; 
foot-hills, grazing and mineral ; mountains, timber and mineral. 

8. Agricultural are easily classed. Mineral land can only be classed by a thorough 
scientific examination wherein pick and shovel must be used. 

9. Timber land should be surveyed in small tracts, and the quality and quantity of 
timber reported on by the surveyor or some person appointed for the purpose, and the 
timber sold in tracts not exceeding 20 acres ; but the land on which the timber grows 
should be reserved to the United States, with the privilege for miners to prospect or 
mine on the same, and, after a period not exceeding fifteen years, the timber left stand- 
ing should again vest in the United States and should never be sold again except to 
miners who shall be in actual possession of the ground and have a oona-fide and pay- 
ing mine. Or perhaps a better plan would be to charge a stumpage that should bring 
the United States an average of not less than $2.50 per acre for the timber land from 
which they cut the timber, and the title still be held by the United States; and in 
view of the fact that timber that will make lumber is very scarce in some sections of 
the country, saw-mills should be charged by the thousand feet. But the plan that 
most of the people would prefer is for the law to remain just as it is. Pasture lands, 
if surveyed and sold or offered, would be slow sale except in the vicinity of some pros- 
perous town, and if sold in any other sections the result would be to shut out poor 
people who were unable to purchase large tracts of land so they could scarcely keep a 
cow, while large stock dealers, who would be the principal purchasers, would require 
from six to twenty thousand acres to accommodate their vast herds, aud I think the 
system would result disastrously to the* speedy development of the Territory. No, I 
don't think the system would be a, judicious one, and as to leasing them, I believe it 
would be worse than their sale. With the desert-land law repealed, at least so far as 
Montana is concerned, I believe the present land-parceling system is as good as can be 
desired, except in regard to placer and quartz, of which I shall speak further on ; but 
will take the liberty to state here that before the government commenced to survey 
and sell the mineral lands the country was more prosperous, as about two-thirds of 
the mining claims are shut down as soon as patented. 

10. I know of no better method than the one now in use, except as stated above, and 
in regard to quartz and placer, of which I shall speak under that head. 

AGRICULTURE. 

1. Climate dry and cool in summer. Rainfall from April to November from 4 to 8 
inches. Seasons, spring from April to July, pretty well mixed with snow and icicles 
sometimes. Summer from July to September, aud fall lasts until about the 1st of 
December. First suows usually about September 15th. Snowfall in winter from 4 to 
14 in the lower valleys and 2 to 7 feet in the higher mountains. 

2. May and June. Irrigation seasou from May to September. Most need of irriga- 
tion, July. 

3. None worth making a note of. 

4. About one- tenth. 



PUBLIC LANDS. 351 

5. All except hay. 

7. Mountain streams fed by springs of never-failing water. Supply good, but a lit- 
tle expense must be incurred in some cases to raise some of the larger streams. 

8. The fertility of the soil is not injured only when washed away, but is improved 
if any changed. Good crops of wheat, oats, barley, and potatoes, and all kinds of gar- 
den produce except vines, such as tomatoes, melons, squash, &c, which will not grow 
here at an altitude of 5,800 above the sea. 

12. About one-tenth. 

3 3. Impracticable as it requires on an average about 10 acres to keep an animal one 
year, and in some cases twenty-five would not do it. 

14. Not advisable ; and if put in market the quantity should be limited. 

18. Diminished. 

19. No ; only their hay land. 

20. No.' 

23. Diminished. The native grasses in this country will not stand much grazing. 

24. Cattle will not graze with shee}D nor on land where sheep have grazed lately, if 
left to themselves. 

TIMBER. 

1. About one-half is timber on the west side of the main divide. East of the divide 
it grows less and less down to the plains at the base of the mountains. The character 
of the timber is mostly a thick growth of small pines growing among the rocks and 
higher mountains, only fit for fence-poles, log-houses, and fire-wood, and not more than 
the one-fiftieth part of it on an average is fit for saw-mills. A little very scrubby 
cedar grows among the more rocky places. Besides this a light growth of cottonwood 
birch, quaking asp, and black alder and willows grow along the margin of the 
streams. The last mentioned five are fit only for wood and shelter for stock, as it is 
very scrubby and crooked. 

2. Cottonwood and quaking asp are the only kinds planted, and must be irrigated ; 
time of growth fifteen to twenty years in this country for a tree five inches in diam- 
eter; they are only planted for ornament. 

3. I would not dispose of them at all ; but if they must be disposed of do it by lease 
in small tracts, and to prevent monopoly the number of leases to one man should be 
limited and non-transferable, and in a certain number of years the lease should be can- 
celed, and in view of the scarcity of saw timber in a great many places saw-mills 
should be allowed to cut where they please and pay stumpage or by the month, ac- 
cording to capacity of the mill. No lease exceeding 40 acres to one person, and only 
one lease to the same person in the same land district, but allow him to file abandonment 
papers with the proper officer at the land office, and locate another at any time. But 
in all cases the mineral and the right to prospect for the same, and mine on the same, 
should be reserved for any persons who wish to avail themselves of it. Price should 
be from two to five dollars per acre, according to quantity and quality of timber. 

4. Yes; for reasons given under Question 3, to prevent monopoly and give all a 
chance to acquire land. 

5. Yes, if fire is kept out. Variety same as formerly, and takes from ten to fifteen 
years for a tree five inches in diameter. 

6. They are frequently intentional and often the result of carelessness; they are 
very destructive in dry weather ; they might be checked to a certain extent by fine 
and imprisonment, but the only sure preventive is a greater rainfall. 

7. In this country the timber used for mining and building purposes is scarcely 
missed, as only a very small portion of the amount of timber growing on a given por- 
tion is fit for the purpose. It is only such as is suitable that is taken, and the only 
waste is a portion of the tops, which is wasted, and much of that is gathered for fire- 
wood when it gets dry. It is only in the vicinity of large mining camps where there 
are mills that forests are much destroyed, and even then the timber on the more inac- 
cessible portions is not taken. This place and vicinity consumes about seventy-five 
cords of wood daily, and this destruction of the forests cannot be prevented without 
stopping or seriously crippling the mining interests. Tht> survey and sale or lease or 
a stumpage law will not stop these inroads upon the forests. 

8. The ownership of timber felled is usually conceded to the person felling the same, 
but if not used in a reasonable time it is sometimes used by others. I speak of tim- 
ber felled but not cut up. 

9. They might be, but they would have to appoint agent3 to look out for them, and 
as the persons usually appointed to positions of this kind are generally scoundrels, I 
doubt the wisdom of the policy. 

LODE CLAIMS. 

1. I have been in mining countries for nineteen years — about three years in Colo- 
rado and sixteen in Montana ; have mined mostly in placer, but for the past four 
years have combined quartz and placer ; have had but little experience in mine-sur- 
veying, and no personal experience in litigation. 



352 PUBLIC LANDS. 

2. Under the present law one person can locate a continuous vein of one mile in 
length, or five miles if it can be traced so far, by simply giving it a new name every 
1,500 feet. This is wrong. No person should be allowed to hold more than two claims 
on the same vein, and the end-lines of the two claims should not be less than 2,000 
feet apart. Then again a person locates a claim and does not represent it before the 
end of the year : locates it under a new name at the end of the year, and thus holds 
it for four or five years without doing $100 worth of work on it during the whole 
time. That is wrong. No person should be permitted to relocate the same ground or 
any part of it, except he has represented the same, and does it to alter the lines for- 
merly established. Then, again, they are too large. One thousand feet in length by 
400 in width is large enough, and should include all veins within the surface, with the 
right to follow them to the depths of the earth, and the first location to hold when 
two or more veins come together. 

3. If this question has any reference to cross lodes, it should not be done. There 
should be no cross lode after it comes to the surface ground of a prior location — that 
is, it should belong to the claim first located. 

4. I understand the apex of a lode to be where it comes through or to the surface 
of the rock in which it is incased, though it may be covered, and sometimes is, with 
twenty or thirty feet of loose earth. The dip of a vein is usually determined at fif- 
teen or twenty feet below the apex, but sometimes it is as deep as a hundred, depend- 
ing on the shape of the mountain. 

5. They are not properly protected. 

6. Where a lead has much dip they sometimes go outside of the side lines and sink a 
perpendicular shaft and strike the vein, and litigation ensues. 

7. No ; but two seams running parallel, if near together on the surface, usually come 
together at some depth. 

8. No ; but have heard of such cases. • 

9. I have never seen a true outcrop as wide as 100 feet, but they sometimes terminate 
abruptly and come in again at from 50 to 200 feet, at a square angle, and come together 
at great depths. 

10. Yes. 

12. Have never known a case of the kind, but such a thing is possible. 

13. Yes. 

14. It is not possible while scoundrels are left at large, but rights of prior location 
can be better defined and protected. 

15. Yes, in several in Montana. Have beeu where there were as few as seven men 
and where there were one hundred. All are miners when a mining district is organ- 
ized. First a president and secretary pro tempore are elected ; next by-laws are adopted 
to govern the size of claims and manner of location and representation ; then a perma- 
nent president is elected to call all meetings and preside at them ; then a permanent 
recorder, who records all claims located, making a description of the same, and who 
makes a record of all transfers. 

16. Usually by number each way from the discovery, and the record holds good as 
long as the locator complies with the local by-laws. 

17. Only when it can be done without interference with another location. 

18. No ; but if such a case does happen possession is the only security. 

19. In this Territory quartz locations are recorded with the county recorder ; so they 
are secure. But as they are frequently forfeited and relocated year after year, I cannot 
see that much good could result from it ; but if some means could be adopted so a 
patent could be secured for less money, it would be a good move and thankfully received 
by the miners. 

20. No; in a Territory like Montana there are too many contested cases for the local 
land officers to attend to; but a special judge might be appointed in each Territory, 
who might be an officer in the land office when not employed in contested cases, with 
appeal to the United States Supreme Court or the Commissioner. Some of these con- 
tested cases are very long, and it would occupy several weeks in each year to dispense 
with all of them. 

21. Make the claims not to exceed 1,000 feet in length ; limit the number of claims 
to one locator within a certain distance of each other ; give each locator all that comes 
to the surface of the bed-rock in the bounds of his claim, and allow him to follow the 
vein in its dip as far as fire and water will let him, and when two or more veins come 
together first locator to take all ; $500 worth of actual mining exploration before appli- 
cation for patent; wells, cellars, houses, and all movable machinery not to be called 
improvements only in excess of $500; and I believe that some cheaper method of 
securing title after the improvements are made might be adopted ; but the advertising 
should not be dispensed with. 

22. Yes; five years. 

PLACER CLAIMS. 

1. If this question is to include lodes, about one-third ; but if placer only, I will say 
that if you take a section of this territory 200 miles square, and make this place the 
center, that less than 1 acre in 200,000 will pay $1 per day for working. 



PUBLIC LANDS. 353 

2. Yes ; have made locations, mined, and made application for patent. 

3. Possessory title in ten to twenty days costs $3 for record. By patent from three 
months to five years; costs in fees to the different officers $115, and $15 for advertise 
ment, and $2.50 to $5 per acre additional ; and if a patent is to be obtained inside of 
four or five years, an attorney from $25 to $50, at Washington, who will probably get 
it through in one year. With contest they are sometimes delayed two years in the 
courts of the Territory and the cost goes into the thousands. 

4. Never had a contest, and this question is answered under question 3. 

5. Defective. 

6. They are defective in everything. They are a source of perjury, fraud, and black- 
mail, and an injury to the best interests of the mining countries, and should be repealed. 
Claims are usually not worked after patented, but are held for speculation. They are 
often used to apply for patent for ground belonging to other parties, for the purpose 
of securing some outside ground and getting blackmail enough to pay for all of it out 
of parties who have a good title to a portion of the ground and would sooner pay the 
amount asked than bring suit. They are used to try to steal a little good ground from 
some other parties whose grounds they cannot buy. Under local laws from one to four 
hundred feet by two to four hundred feet in width is a claim, and if work is not car- 
ried on during the summer they are considered abandoned, except the owner is sick or 
there is no water to work them. Can purchase as many as he can represent, according 
to local customs, which vary from one to two days in each week for each claim owned. 
Evidence of title is bills of sale and the books of the local recorder, and no use is made 
of them, except for mining ; and the character of litigation is a suit of ejectment and 
damages or an injunction. 

Yes, the United States placer laws are defective, and I will suggest that if the United 
States must have a revenue from them that they be not sold as at present, but be 
recorded in the local land office in claims of not more than 1,000 feet in length, and the 
number of claims that one man can hold be limited to a certain number in a certain 
distance, and a fee of $2.50 for each 200 feet square claimed shall be paid to the United 
States land office at the time of record, and record required in a reasonable time ; and 
the claimant not to hold the ground any longer than he shall place or cause to be placed 
on each claim a certain amount of permanent mining improvements in each year. Under 
the present placer law wells, cellars, cabins, fences, &c, are used to prove up on ground, 
and I know of one application for patent in this district for 160 acres on which not one 
dollar's worth of mining improvements can be found ; and this reminds me of a plan or 
two that is adopted by applicants : One is to borrow hydraulic pipe and hose and haul 
them on the ground, prove up on it, and take the improvements off; another is to buy 
old improvements from some person who never owned, them and prove up on the work. 

7. Yes ; Alfred Dell, 160 acres ; Noyes et al., J. Harrington, Jones & Harrington, town- 
ship 3 north, range 7 and 8 west, Montana. 

8. It has been used to obtain patent on ground where a number of ledges were known 
to exist at the time of making application ; in this district E. D. and J. A. Leggat and 
L. W. Foster, range 3 north, 7 west ; Noyes & Upton, 3 north, 8 west, Montana. 

9. No. 

CLOSING REMARKS. 

In giving the above answers to your questions I have aimed to give them on my 
convictions formed by a long residence in the mines, and if I have erred it is myjudg- 
ment. If I have entered too much into details it is because I wished to be "under- 
stood. I have been more explicit on the mines because more interested, and I have 
only made suggestions which I believe to be for the best interests of all ; and if in this 
long communication I have given your honorable Commission one hint that will aid 
you in dealing with this question of the mining countries I am content, and, asking 
your Commission to remember that to have a mine or a dozen of them is no proof that 
a man is rich or ever will be, I subscribe myself, 
Yours, most respectfully, 

WESLEY P. EMERY. 



Testimony of Lawrence A. Fenner, miner, Virginia City, Mont. 

The questions to which the following answers are given will be found on sheet 
facing page 1. 

Virginia City, Mont., November 24, 1879. 

To the Honorable Public Land Commission, Washington, D. C. : 

Gentlemen : In reply to your communication I will state that I have been engaged 
in placer mining in this Territory and Colorado since 1860, and have had practical ex- 
23 L c 



354 PUBLIC LANDS. 

perience in all branches of gravel mining: have mined in Alder Gulch, near Virginia 
City, since 1864. I think that more than one-half of the land in this vicinity is min- 
eral in character containing placers, and gold, silver, and lead bearing lodes, and also 
a limited quantity of copper, cinnabar, and coal have been found. 

I have become familiar with the mining laws of Congress by actual experience in 
obtaining patents for placer ground, both with and without contest. 

In 1875 I made application for 60 acres of placer ground by legal subdivisions. There 
was no contest, and alter publication the acreage was paid, and two years after I re- 
ceived my patent. The total cost per acre in this application was $5. 

Iu March, 1877, I made application for aD other legal subdivision of 10 acres, adjoin- 
ing my first application, and subject to the same local laws and customs in regard to 
possessory title. This legal subdivision was made up of ground which I could not 
embrace in my application of 1875, and of a purchase made just before application, 
and claims that were supposed to be abandoned, for they had been represented in no 
visible manner for many years. 

An adverse claim of 2.77 acres was set up by certain parties, who filed protest and 
plat of survey in the usual manner. After a delay of one year, the case came up for 
trial before the district court at Virginia City, and i f , was decided I was entitled to 
1.47 acres, and the adverse party 1.30 acres of the original adverse claim as filed by 
the protestants. The judgment-roll defined by metes and bounds the parr, to which 
each party was entitled. I immediately sent a certified copy of the judgment roll and 
pay for 8.71 acres to the land office at Helena, and got my receiver's receipt in return. 
The adverse party did not then take any steps to complete their title, nor have they 
since, but refused to give me power to patent the whole legal subdivision after I had 
offered them any security they desired that I would reconvey their portion to them 
after my title was complete. They declared that the only use they had for this ground 
was to make me expense in obtaining a patent. 

Now, after a year and a half has elapsed since my filing judgment-roll, information 
comes to me that a decision has been made by the Interior Department that I will be 
under the necessity of making survey and plat in the manner provided for ground not 
legal subdivisions, this ruling involving an additional expense of $85 or $100, making 
a total cost for obtaining title to 8.70 acres of over $500. Of course the largest part 
of this sum went to pay expenses of contesting the adverse claim. Witnesses had to 
be brought a long distance to prove a chain of possessory title, according to the local 
district laws, running through a period of twelve years. 

As regards my knowledge of the experience of others, I will state that I know of 
one instance in this vicinity where the applicant suffered from the imperfect working 
of the mining laws of Congress in the matter of adverse claims, and I know of other 
parties who suffered severe extortion in order to escape an adverse claim from those 
who held small claims which had not been worked for years, and which were utterly 
worthless alone. 

In order to show the evils arising from allowing mining districts to regulate the man- 
ner of possession beyond a limited period after discovery, I will give a short history 
of the mining laws of Alder Gulch, and this is but the history of many other gulches 
which have come under my observation. Alder Gulch was discovered late in 1863 and 
was divided into several districts. The first local law allowed each person one claim 
by pre-emption and one by purchase, each claim consisting of 100 feet up and down 
and from side to side, and in the lower portion of the gulch, where it is very wide, the 
gulch was divided by the original creek channel so as to form two tiers of claims. 
The two first seasons after its discovery nearly all of the gulch that would pay by the 
primitive method of mining, which is the only way small claims can be operated, were 
worked out and many claims were abandoned. About this time the miners' laws were 
so amended as to allow each person to purchase and hold as many claims as he could 
represent by doing two days' work each week for each claim, and soon after the laws 
were again amended in this (Nevada) district so that it only required a residence of 
four months each year for a miner to represent any number of claims. In 1866 a new 
system of reworking these claims in large bodies by means of flumes, hydraulics, and 
hoisting works was inaugurated— this style requiring work to be begun at the lower 
line and continued up stream. Then it was that some of these worked-out claims fell 
into the hands of men who used them only to extort money from and harass the larger 
claim owners, the local laws making this an easy matter, for, without marking bound- 
aries, it was only required to have record made by number by a district recorder, who 
was bound in no manner to the faithful performance of his duty. Such was the state 
of affairs when, in 1875, the large claim owners first applied for patents. Some who 
held a large body of ground found themselves cut into by a single hundred feet of 
ground, the owner of which threatened an adverse claim unless unreasonable privileges 
were granted or an extortionate price was paid him for his ground. 

By a ruling of the Interior Department several claims not contiguous may be in- 
cluded in one application, provided $500 worth of improvements were made by the 
applicant or his grantors on each separate piece of ground. 



PUBLIC LANDS. 355 

A company of miners near here in this gulch, having two separate bodies of ground, 
desired to include both in one application, but were barred from doing so because all 
the improvements, valued at many thousands of dollars, were on one piece of ground, 
while the other was made up of several original claims which, after having been worked 
by the primitive method in the early day and afterward being abandoned, were located 
again and finally passed into the hands of the present owners for a valuable consid- 
eration. 

The chain of title from the men who first owned and worked these claims was broken, 
and the only remedy was either to forego a patent or do $500 worth of " dead work." 

Again, it might happen that one of these flume companies after having patented their 
ground might purchase contiguous ground of the character just described, in which 
case they would be barred from patent for the same reason. 

I know of no instance where a title has been obtained under the placer law for non- 
mineral land, although I know of one instance where the attempt was made. Within 
my knowledge the placer law has not been used to obtain titles to lode claims. I do 
not know any valuable placer lands which are un worked because the outlets are con- 
trolled by claimants under other than mineral titles, although this is liable to become 
a matter of litigation between parties at the mouth of the gulch. From my experience 
and observation I draw the conclusion that the mining laws of Congress in regard to 
placers need amending in the following particulars : 

1st. For two years after a placer is discovered miners should be allowed to make 
their own laws in regard to size of location, manner of representation, &c; after that 
those matters should be regulated by Congress. 

2d. After local laws are abolished, placers should be required to represent by labor, 
marking boundaries. &c, in some such manner as is prescribed for quartz lodes. 

3d. Five hundred dollars' worth of improvements on any claim should entitle the 
possessor to a patent for separate claims in the same or different applications, pro- 
vided they are situated in the same mining gulch or district, and provided, also, that 
the applicant shall show that he includes nothing but bona-Jide mining ground. 

4th. There should be a stated time when acreage should be paid, and the failure on 
the part of an adverse claimant to comply with this provision after his possessory 
title has been confirmed by a court of competent jurisdiction should leave the appli- 
cant free to continue his application the same as though there had been no adverse 
claim. 

5th. Placers should be surveyed by the system of triangulation, and the manner of 
patenting by this system should be simplified as much as possible. In this gulch 
miners have patented both by old location and legal subdivisions. It was gener- 
ally understood that the Interior Department favored the rectangular system the 
most. Then there is long delay and extra expense in obtaining order of survey, post- 
ing and filing plat, &c. ; consequently some thought best to make application by legal 
subdivisions and suffer the inconvenience of leaving out corners of actual mining 
ground and taking in some of a worthless character. The two systems do not work 
well together, and either the one or the other should be abandoned. 

6th. The manner of contesting adverse claims should be made more simple, so as to 
avoid all harassing delay and unnecessary expense. 

In conclusion, I trust that it will be considered that I have not been overofficious 
in this matter, and that some information may be gleaned from this crude statement. 
It is possible that my experience in adverse claims is somewhat isolated, but such may 
occur again. 

Eespectfully, 

LAWRENCE A. FENNER. 



Testimony of William Flannery, Bozeman, Gallatin County, Montana. 

The questions, to which the following answers are given will be found on sheet 
facing page 1. 

1. William Flannery; post-office address, Bozeman, Gallatin County, Montana; 
farmer, stock-raiser, and owner of a saw-mill. 

2. Thirteen years. 

3. Yes, by pre-emption, homestead, and timber- culture act. 

4. From reading, inquiry, and observations. 

5. The expense of filing a pre-emption was from $3 to $8, and homestead from $16 to 
$24. I do not remember the amount required when final proof is given. I do not 
know the expense of contested cases. The average distance to a land office in this 
Territory is about 100 miles. The time it would take to make a trip and do business 
would be six days, traveling expense of a man and horse would be $4 a day. This 
would be the expense when a party would furnish their own horses. Other modes of 
conveyance are more expensive. 



356 PUBLIC LANDS. 

6. The register and receiver ought to have a fixed fee for getting up all the papers 
necessary for getting a title to public lands, and oblige them to fill blanks -without 
charging an attorney's fee. Public land in the Territories ought to be pre-empted in 
all cases at $1.25 per acre. Eailrcad lands ought to be settled and acquired at a fixed 
cost with the other lands. It retards settlement too much to have one-half the land 
"withdrawn for railroad purposes and one-ninth of the other half for school purposes. 

7. Consists of mountains, foot-hills, and valleys, limestone formation predominating 
on the surface. Valleys along water courses usually excellent agricultural land. 
There is some swamp-land which has an imperfect drainage ; it usually has an excess 
of alkali. Foot-hills are agricultural, pastoral, and sometimes mineral ; mountains 
are mineral and timber. 

8. The classes of land are so mixed ur> in this Territory it cannot be classed without 
a careful examination of each tract by competent men. . The only general rule that 
could be adopted in Montana is to class all mountains as mineral and timber, foot-hills 
and valleys as agricultural and pastoral ; then there would be some agricultural and 
considerable grazing land in the mountains, and some mineral lands in the foot-hills 
and valleys. 

9. The present system in theory is satisfactory to the public. It might be modified 
so as to meander where there are natural divisions as between hill, mountain, and 
valley. It would be quite an inconvenience to the public to get educated on a new 
system of survey when the present one gives satisfaction. Timber in the mountains 
would have to be surveyed meandering with canons and ridges. Mineral surveys 
would have to meander with the minerals claimed. 

10. The present system seems to me to be all that could be desired, except the 
desert act, which does not accomplish what it was created for. There is considerable 
land taken up under this act that can be watered as easy as the average of the land taken 
up under the homestead law in this Territory. During the settlement of the Indian 
question large tracts of country are made habitable to white men by Indians being 
compelled to go on their reservations and quit their roaming habits. This land is 
first occupied by cattle and sheep, whose owners command considerable capital. They 
do and can take up large tracts of the most valuable agricultural land and put 
water on at a nominal price, and when they get a title to it will hold it for speculative 
purposes. There ought to be inducements given to capital to sink artesian wells and 
bring irrigating canals on land that is very difficult to bring water on. Such an act 
should reserve all land that has a supply of water easy to control. I would suggest 
that a desert claim of 640 acres should have an irrigating canal that would cost $1,000 
to $1,500, or an artesian well sufficient, allowing a section of 640 acres to make four 
farms of 160 acres each. Three or four hundred dollars for an irrigating ditch is not 
too great an expense for a homestead or pre-emption in this Territory. Very fre- 
quently $1,000 or more has been expended on getting water on homestead land. A 
desert act should be free only to land that individual enterprise, under the homestead 
and pre-emption laws, would not settle. 

AGRICULTURE. 

1. Eainfall, light; snowfall, in winter considerable ; supply of water for irrigating 
everywhere sufficient at some cost ; climate, cold but seldom severe. 

2. Grain crops are sowed in April and May, and harvested in August and September. 
April, May, and sometimes June, have sufficient rain. When it rains on the valleys, it 
snows on the mountains, the more rain the colder. Crops do not grow fast until the dry 
season, excepting of course the natural grasses, the source of water being in the 
mountains, snow on which does not thaw until warm weather. 

3. Very little. 

4. Nearly all the arable land. 

5. Wheat, oats, barley, aDd like cereals, Irish potatoes and all the hardy vege- 
tables. 

6. Wheat in this county is scarcely ever irrigated but once. The amount of water 
required is controlled by local influences on character of soil, the amount of fall, 
evenness of surface, &c. There could be no general standard quantity for each aero 
that would be satisfactory. 

7. Almost every stream large and small can be used at some expense for irrigating. 

8. Irrigating in a dry climate means a sure crop from this cause. I would not give 
a good irrigating system for any climate I know, for agricultural purposes. Irrigat- 
ing does and must improve the fertility of the soil, for it leaves < very thing it holds 
in solid ion, which is considerable in the higherstages of water. Crops can beraised on an 
altitude of 5,000 feet or perhaps greater. 

9. During 1 he irrigation of crops all the water turned into the ditches is supposed 
to be. used. After irrigating some leave water in their ditches through carelessness 
and for uses dther than irrigating. The law of the Territory gives a prior right to 
water to irrigate 160 acres, laid doe., not allow waste to the detriment of others. 



PUBLIC LANDS. 357 

10. The Territorial laws require ditches to be recorded in the county clerk's office. 
Most of the ditches are held without any record, by continued possession. There may 
be trouble to find who has a prior right after this generation passes away. 

11. There is some difficulty between parties on small streams, but no legal con- 
flicts. 

12. One-half. 

13. It is not. Considerable good agricultural land would be taken up and monopo- 
lized under such an act. Let the herds of stock occupy the land first free, and then 
let homestead settlers occupy the land and take the place of the large herds of stock. 

14. No. I would give the range now to stockmen free, allowing all to occupy it under 
the homestead and pre-emption acts, and then in time it will be occupied by perma- 
nent settlers. It is impossible now to establish the agricultural limit of this land. 
There is in some of the " bad lands" as fine wheat land as there is anywhere. 

15. Without having any accurate knowledge, I would say 3 acres. This county is as 
good grazing as any in the Territory. 

18. Increased ; got thicker. 

19. But few. Would depend on locality and with regard to water and shelter. 

20. If herds were confined to specific ranges it would increase the cost of herding, 
but would allow cattle raisers to improve their herds without being interfered with by 
their neighbors' inferior stock. 

21. Numerous mountain streams and springs. 

22. Five. 

23. Increased. 

24. Yes. 

25. Some jealousies, mutterings. No conflicts. 

26. There are 8,760 horses, 46,704 cattle, and 26,110 sheep in this county. Horses and 
cattle are let run at large and looked after. Sheep are herded in herds from 500 to 
3,000. 

28. Yes. Mounds are not large enough, and where rock is used hard to identify and 
find. 



1. Two-fifths of the mountains are covered with pine, different varieties. There are 
cotton woods along the streams and scrubby cedars on the dry foot-hills in places. 
There is but little in this section fit for lumber. 

2. Planting timber has been practiced only a few years. Cottonwoods are princi- 
pally planted. There has not been enough of experience in the business to form de- 
ductions from. 

3. In disposing of timber land in the mountains a right to discover and work the 
precious metals should always be reserved. Farmers and stock men the owners of 160 
acres of land or less amount in proportion ought to have a homestead of 80 acres of 
timber, providing that they make proof before they get final title that they have lived 
on their farm for which they want the timber land five years, and settlers taking up a 
homestead ought also be allowed to take 80 acres of timber. The advantages of giving 
farmers a tract of timber are numerous, among which are that it will cause farmers to 
acquire a habit of owning timber among them, which will often cause farmers to 
plant tracts of timber when it cannot be otherwise procured. Their use of timber is 
constant, and the amount of timber required by a farm can be estimated, which can- 
not be done in any other business, &c. 

I would sell tracts of timber not exceeding 160 acres to owners of saw-mills, mines, 
manufacturers, or owners of any business that requires the use of timber, allowing 
them to locate a tract sufficient for their business for two years, not exceeding 160 
acres at $1.25 per acre, providing that the land and timber not used shall revert to the 
government five years after it was purchased, allowing a party to buy a new tract 
wlten they pleased, but providing that any former purchase for the same business shall 
revert to the government, &c. 

Timber in the mountains frequently in inaccessible canons, in which it is difficult to 
make roads, and the enterprise that will make those roads ought to be protected by 
obliging others that may use them and be benefited by them to pay a reasonable pro- 
portion of their cost, asin the case of joint fences or other mutual benefits. Under 
existing Congressional law the Territory cannot accomplish anything like this. Pop- 
ular opinion thinks that the government ought to give the timber in the mountains 
free, which may be the best way. In any case, those that make expensive roads to in- 
accessible places ought to be protected in their enterprise. As the matter stands now 
they are left to the generosity of the American people, the majority of which respect 
men's rights in such cases. 

4. It may be advisable to distinguish between forests that are sufficient for export 
and that which is only capable of common domestic uses, of which there are large 
tracts of country that contain only the latter, and some which contain the former. 



358 PUBLIC LANDS. 

5. There is a second growth of the same kind of timber rather slow to start, hut 
when started grows fast. 

6. Forest fires were apparently very frequent before settled by white people, and 
is now where Indians roam. Since, and where settled by white people, there has been 
but few fires. There was vast quantities of timber burned apparently before this 
country was settled, but now has grown up in young pines. Tracts of prairie are 
never burned here. The grass is needed dry or green. The laws of the Territory 
make the careless use of fire on prairie or timber a criminal offense. 

7. In this Territory there is no source or supply of timber except in the mountains, 
which is not agricultural, and is mineral land ; therefore all the timber used is off 
government land. I cannot say that there is much unnecessary waste. It would be 
necessary to enact laws against waste of timber ; it would be necessary to give the 
public a reasonable time to change from the old to any new system that may be 
established. 

8. It has been decided in the courts that when timber was felled and moved it was 
then the property of the party who felled and moved it. 

9. Their position would suggest that they ought to be the custodians of the public 
timber. 

I do not want to make any suggestions on mineral land. The inclosed are the views 
of the masses of the American public, which have the welfare of the masses and the 
best interests of the government in view according to my knowledge and belief. 
Very respectfully, 

WM. F. CANNERY. 



Testimony of George B. Foote, mineral deputy surveyor at Helena, Mont. 

George B. Foote, mineral deputy surveyor at Helena, Mont., testified September 26, 
1879, as follows : 

I have lived in Montana since 1864. 

Question. What do you understand the apes of a lode to be? — Answer. The apex of 
a lode is the highest point where it reaches the surface. It is not always possible in 
the early workings of a claim to determine the apex of a vein or lode. 

Q. Has there been much litigation here ? — A. There has been considerable litigation 
in regard to the jumping of placer claims ; more in regard to placer claims than lode 
claims. In lode claims there has been some litigation growing out of a variety of lo- 
cations conflicting. Lodes interfere one with another. The parties are often uuable 
to tell which is the real owner. I have known two parallel seams, otherwise on the 
same outcrop, being located by two parties ; and this gives rise to contest. 

Q. Are or are not the outcrops of lodes often wider than the local width of claims 
here as defined by United States, State, Territorial, or local district regulations ? — A. 
There are not in the Territory of Montana any such lodes. Under the old law of the 
Territory claims used to be 100 feet on each side of the vein ; but the Secretary of the 
Interior decided that 100 feet on each side of the vein meant from the center of the 
vein. I carried the case up to the supreme court of this Territory in 1874-'75, and the 
supreme court of Montana decided that it meant each side of the vein itself and not 
each side of the center j and on that decision I got a patent for quite a number of 
mines. That law is now repealed and the United States law is accepted. 

Q. Are or are not a large majority of the discoverers of rich veins, or their assigns, 
often burdened with costly litigation to defend their rights from subsequent locators 
in their immediate neighborhood ? And in such cases is or is not the legal attack most 
often directed to the portion of the dip of the lode which has passed beyond the ex- 
terior lines of the surface tract? — A. Yes, I know such cases. 

Q. In view of the known variety and complexity of mineral deposits in rock in place 
is it or is it not, in your judgment, possible to retain in the United States mineral laws 
a provision by which locators can follow the dip of their claims outside their side lines 
without provoking litigation? — A. Yes, by making a square location. I believe in the 
square location of all mines. I think it would be to the interest of tbe miners and 
every one else to make a square location of so much ground and confine them to that 
ground. 

Q. Have you ever taken part in organizing a local mining district ? — A. I have taken 
part in the organization of mining districts, but that is abolished now in the Territory 
of Montana. 

Q. State generally the mode of originally taking up and locating a mineral claim 
under mining customs and the effeet of a record of such location. — A. Now a man 
lo( tatesa claim and tiles an affidavit in the county recorder's office. 

Q. Is that record capable of subsequent amendment ; and if so, how ? — A. A person 
can alter a location before it goes up to the surveyor-general. There can beany 
Amount of fraud committed. 



PUBLIC LANDS. 359 

Q. Within your knowledge have mining titles been distributed or litigated through 
fraudulent manipulation or destruction of these records ? If so, what security is there 
against such frauds? — A. Yes, sir. In the decision of the supreme court in the case 
of Carpenter vs. Rankin, a case over in Washington County, in this Territory, which 
went to the United States Supreme Court on appeal, the Judges of the United States 
Supreme Court gave the judges of the supreme court of Montana a blowing up, be- 
cause they would not admit the testimony of competent persons after the records had 
been destroyed. 

Q. Calling your attention to the fact that a copy of the certificate of location as 
certified by the local mining recorder is the sole basis of the paper title for a mining 
claim under existing law, and that compliance with the varying customs of innumer- 
able mining districts constitutes the preliminary acts upon such claims, state whether 
in your opinion all mining district laws, customs, and records could advantageously 
be abolished as to future locations and the initiation of record title be placed exclusively 
with the United States land officers. — A. I think it would be much better, and I think 
it ought to be done. 

Q. Calling your attention to the fact that under present laws an adverse claim, in 
proper form and seasonably filed, suspends the administration of the mineral laws by 
the United States land officers and transfers the jurisdiction to the courts of law, both 
State and United States, please state whether in your opinion the adjustment of con- 
troversies concerning mineral lands prior to issue of patent should not be left abso- 
lutely to the United States land officers in the same manner as contests are under all 
other land laws ? — A. I think not. I think there should be a method of getting a case 
into our Territorial courts to be tried by juries of miners. 

Q. If you consider it desirable to retain the leading features of the United States 
mining laws, what amendments, if any, would you suggest to remedy any defects 
which your experience or observation has detected? If, on the contrary, you believe 
that the practice of following the dip beyond the side line of a claim is incompatible 
with satisfactory administration, what method of location would you suggest? — A. In 
the first place, the United States law should be so amended that if mill-sites are al- 
lowed to be located, I would make it at least 40 acres to the location. I would have 
men and locations confined to the square location. I would also have a number of 
things in the land office simplified. 

Another thing. It is an outrage on all miners, and it is an outrage on every claim- 
ant, that a man that goes there to Washington and puts out a little cash can get his 
patent through very soon. I would have the Land Office adopt the same system as 
the Patent Office. I would not have any preferred claims. Unless a man gets an attor- 
ney in Washington it takes from one to four years to get a patent in its usual course, 
and sometimes it takes five years. Another thing which is bad is the fact that, although 
the land is paid for and the patent certificate sent up to Washington, instead of that 
patent being sent here to the district land office that they may record it on their books, 
the patents are delivered to persons in Washington and no notice of their delivery sent 
to the district land office. The district land office frequently gets notice of the deliv- 
ery of patents from Copp's Land Owner and from the parties themselves. 

Q. From your personal experience, please state the time and expense of procuring a 
mineral title ; whether possessory or by patent, both with and without contest. — A. All 
claimants within two years from date of their application should be compelled to pay 
up. It might be ten years with a contest, or perhaps it might be a thousand years 
without contest. For an ordinary lode claim the cost is : for the surveyor-general's fees, 
$25 to $40 ; land office fee, $10 ; surveyor's fen, fromfGOto $50 • making papers and no- 
tary's fees, $25 ; publication, $25 ; recorder's fees, from $5 to $10. I think the law 
ought to be amended so as to allow attorneys in fact to make applications, and make 
out all necessary papers filed in adverse claims. 

I am familiar with the rectangular system, and I think it is the best system that can 
be adopted. I think it might be well to use triangulation in order to overcome natural 
obstacles like hills, mountains, &c. The monuments in these surveys are very poorly 
established. There is great complaint among the settlers on that account. I am very 
frequently employed by persons to make resurveys. It usually costs a settler consid- 
erable money. In three years the monuments disappear so that the corners cannot be 
found. I think it is due to the contract system. I would remedy it by paying more 
money for the surveys and having an inspector. Then there should by all means 
at convenient distances be fixed monuments established. Most deputy surveyors use 
the solar transit on the mining lands. In subdividing many of them use the needle. 
I think it would be well if the deputy surveyors should carry an aneroid barometer. 
There is much bad surveying done. In township 8 north, of range 3 west of the 
principal meridian of Montana Territory a creek is laid down as running in sections 
29 and 32, but it runs three-fourths of a mile west of where it is laid down. I have 
frequently found quarter sections that would not tally out. Range No. 9. west of the 
principal meridian will show some very bad surveying, and on the ground I can show 
worse surveying than that, although it looks pretty well on paper. You cannot go 



360 PUBLIC LANDS. 

to the county recorder's office where the records are kept arid find one in fifty 
mines from the description given there. I can show you c]aims here that are not 
within six hundred feet of where the plat puts them. Take the Nellie Grant mine in 
Jefferson County, Montana, there was no survey made of this mine before they got a 
patent for it. I would remedy this sort of thing by employing better men, giving 
them more money, and using better instruments ; and before they get their pay, let 
their work be inspected. I think there should be closer surveys made. 

I think the timber ought to be surveyed and sold. For instance, a man who is a 
mine owner or mill owner or owns a range should be allowed to come in and pay for 
a certain lot of timber land. I would sell it for $1.50 per acre. I would sell the tim- 
ber, reserving the mineral on the land. If a man bought a mine with timber on it I 
would give him the timber. Under a proper system of irrigation one-sixteenth of this 
Territory can be irrigated. I think that the pastoral homestead idea is a very good 
one, but 1 am afraid that a great deal of fraud, would be committed under it. A man 
with large herds I would allow to lease or keep the land until they were able to buy 
it. I do not think the government ought to charge more than fifty cents an acre for it. 

I have had experience in surveying ditches and "the usage is, and I think the law also, 
that when parties take up water and use it or put it to use they have the exclusive 
right to that water. They take it all and do what they please with it. They are not 
compelled to return it to the stream, although I believe there was a law passed at the 
last session of the legislature where if water is not used it shall be returned to the 
stream. This relates to the use of water for irrigating purposes, but it ought also to 
apply to mining. 

I think that the desert-land act is a very poor act. They are taking up irrigable 
lands under it and sometimes take up marshes and swamps. There is one suggestion I 
would make in regard to this desert land. For instance we have thousands of acres here 
that could be irrigated and made good land by bringing a canal from Jefferson Eiver 
around the different bench lands here and cover these low valleys ; but it is an enter- 
prise which will cost thousands and thousands of dollars, and can only be done by ag- 
gregation of capital or by some company. I think the government should give every 
alternate section for irrigating purposes ; that is, the government should assist irriga- 
tion by this means. 

I think the placer-claim law ought to be so amended as to compel " representation " 
by parties making placer claims, the same as lode claims. 



Testimony of Daniel Floiverree, stock and cattle raising, Selena, Mont. 

Daniel Flowerree testified at Helena, Mont., September 27, 1879, as follows : 

Am engaged in the stock and cattle raising-business. My range is in the Sun River 
and sweet grass country, about 80 miles from here on the Yellowstone. I have in the 
neighborhood of 11,000 head of stock. It takes about 30 acres to support a head of 
beef. 

I have no title to any of this land, except a homestead and pre-emption in the Sun 
River country. 

Our cattle range in herds of about 8,000 head. Each herd ranges over about 25 
miles square. This range is about 25 miles square, and I think about 8,000 head of 
cattle pasture thereon. I cannot state the size of the other range, because I have just 
driven our stock on to it. Our oldest stock ranges are well stocked, but this is not 
the case where they are newly settled. 

In my experience, a range decreases year by year by feeding ; it takes more grass 
each year. I think ownership would be beneficial to the stock, to the country, and to 
the settlers. There has not been any conflict between sheep and cattle men, but there 
is likely to be trouble after awhile. Cattle and horses will not graze where sheep 
have been. The sheep graze the ground very closely, and a very long pasturage of 
sheep kills the bunch-grass. I have noticed in Oregon, where sheep have fed they 
have cleaned up the grass, and dog fennel has grown in place of it. I saw this more 
plainly in Oregon than I have here, because our ranges are all new here. 

I think something ought to be done with the pasture lands, but I do not know just 
what. I think it would be well to allow a man to own land to the extent of his herd. 
I think the pasture homestead theory is a good one. This land is worth from 20 to 25 
cents per acre, but I should limit a man to the amount of stock he owned. In the 
course of time we will certainly have trouble here — the sheep and cattle and horse 
interests will conflict. In nine cases out of ten sheep men will come in on the cattle 
men and drive them out, and eventually the cattle men will have to leave. 

The cattle interest is largely on the increase here. It is becoming a most important 



PUBLIC LANDS. 361 

interest. There is more real money invested in stock than in mines. I know of one 
man over on the Sun River, Mr. Concourse, whose cattle could be sold to-day for 
$ 160,000 in cash. The next herd to his is that of A. A. Clarke, and his herd is worth 
nearly as much. There is another herd there which is worth $140,000, and the herd 
that Bob Ford owns is worth from $75,000 to $80,000, as also the herd of the man next 
to him. The herd of John Mining is worth not less than $40,000, and there are many 
more of them. You could go through Sun River ; you could gather up right on Sun 
River more than would buy the whole Penobscot country. My herd is worth $100,000. 
In the future, the pasturage interest is to be a great source of wealth. It is worth 
all the mining of the country. 

The bunch-grass interest has not been represented; only about nine years since 
men went into the stock business. We have here bunch-grass, blue joint, and the 
Buffalo grass. The bunch-grass, although it carries a larger number of seeds, if the 
cattle eat the seeds off and they do not fall on the ground, the grass comes again 
from the roots; the blue joint also grows from the roots principally. The other 
grasses I do not know much about. 

We have considerable white aage. We do not have much other sage bush. There 
is less where I live than in the other parts of the Territory. I put up no hay for 
my stock. The only land I own is 580 acres, a desert-land claim, and 380 acres which 
I took up under the homestead and pre-emption law. If I had an opportunity I would 
get a titie to that range and make my cattle businessa a permanent thing. 

I know of no better way of disposing of the public land than through the register 
and receiver. I think that the men who are occupying the land should have the first 
chance to buy it ; that the cattle settlers should be preferred. 



Testimony of James Gibson, stock raiser, Old Agency, Mont 

The questions to which the following answers are given will be found on sheet 
facing page 1 : 

Old Agency, Mont., October 5, 1879. 

To the members of the Land Commission, Washington, D. C. : 
Gentlemen : Your circular received. 

1. My name is James Gibson; my residence, Old Agency, Choteau County; and 
my occupation that of a stock raiser. 

2. I have lived in this county seven years and in the Territory fourteen years. 

3. I have not yet acquired a title to any government land, out am now perfecting 
two — one under the homestead and one under the desert-land laws. 

4. My opportunities for gaining any practical knowledge of the working of the 
land laws is limited, this section being comparatively new to settlement, no one 
within twenty-eight miles of me having yet acquired a title to any land from the gov- 
ernment. 

7. The physical character of the land of this section is level, bench, and valley, 
the benches being remarkably level, and the valleys — the Marias, Teton, and Sun River, 
with their several tributaries — are fertile, though the soil is rather shallow and of a 
sandy character. The surrounding country is entirely free from mineral, and timber 
only existing on the mountain sides, distant 20 miles. There are known to exist within 
25 miles four or five coal veins. 

10. In my opinion no one individual should be allowed to acquire from the govern- 
ment more than 320 acres of the public lands, and they should be taken under the 
homestead and pre-emption laws as now existing, except that the party taking the 
land should be allowed to pre-empt as well after homesteading as before. The timber- 
culture law is good, except that it gives the individual too much land. The desert- 
land law in my opinion is the worst of all existing land laws. It has no friends among 
the classes who build up a country, and they are loud in denouncing it a fraud. Even 
among those who have benefited by the law will be found numbers who consider it an 
unwise law, but took the land up, like I did, to get the start of others whom the law 
would have permitted to have done so. If the government see fit to dispose of the 
land 8 of Montana to the moneyed classes, she should at least wait a few years before 
doing so, in order to give the emigrants who are just commencing to fill our Territory 
an opportunity to locate upon some of the eligible sites, and there are many. 

AGRICULTURE. 

1. The climate of Montana is remarkable ; it appears to be changing. Previous to 
four years ago, or five at the outside, rain was an unfrequent occurrence. Eight years 



862 PUBLIC LANDS. 

ago it was a remarkable occurrence. Twelve years ago a rain was a phenomenon ; it 
would astonish the beholder as much as three inches of snow in Washington City on 
the 4th of July. Within the last two years the rainfall has been nearly, not quite, 
sufficient for irrigation. This year the rainfall has been better adapted to irrigation 
than last. To-day, the 6th October, it is raining, and was raining all last night. It is 
a steady rain, such as they have in Pennsylvania. A rain at this time of the year I 
don't recollect of ever having seen in Montana on the eastern side of the mountains 
before. 

2. What may be termed our rain season is the latter part of May and June. 

3. There is no portion of this section that has been successfully cultivated without 
irrigation, though it was tried last year about our rainiest season. 

4. Three-fourths of this country could be cultivated with irrigation. 

5. Our principal crops are wheat, oats, and potatoes. 

6. I am unable to state the quantity of water required to irrigate 100 acres of wheat, 
having never given the subject my attention. 

7. The supply of water is considerable, though small when the great extent of 
country is considered. Some of the finest wheat larrds in the country will never be 
fit for anything but grazing purposes unless our rainy seasons continue, and I think 
it very probable that they will. The water supply for present irrigating purposes is 
ample, and consequently there has been no cause for any trouble about water among 
ranchmen. 

13. In my judgment, if a person desires to locate his homestead on pasturage 
lands he should be permitted to do so the same as if he had located elsewhere. 
I do not consider it advisable for the government to put the so-called pasture 
lands in the market for private entry. They should be held back at least a few years 
for actual settlers. If the government were to put these lands in the market for pri- 
vate entry, they would be bought up by moneyed men who would have capital to invest, 
and who would most probably not own a hoof of cattle in the world. They would 
not locate their lands back on the arid plains for the purpose of securing a range for 
their herds, but would locate their purchase on the low benches along the streams or 
back on the higher benches, where with, a little expense a river could be turned, 
thereby redeeming some of the best agricultural land- in Montana. I could locate 
four townships and with very little expense turn the Teton River on it, and thereby 
make a fortune, provided I could borrow the money until I made the turn. The best 
lands of Montana are yet to be taken up. I would advise the government to wait a 
few years. 

15. The cattle of this section occupy a common range, as elsewhere. It is difficult 
to state what amount of pasturage one animal requires to tit it for market. The grass 
is visibly diminishing on this range. 

17. There are between 12 and 15 head of cattle to a square mile on this range. 

19. Cattle men do not fence their ranges in this country, and it would not be safe to 
fence cattle in on a range in winter unless it was quite extensive. 

2L. Previous to four or five years ago the source of water supply for stock was the 
rivers and small streams, but since then numerous lakes have been formed by the 
rains on the benches, and contain water the year round. Besides these lakes, the 
country used to be cut up with dry ravines ; now all the deep ravines have flowing 
springs, and there are indications that the shallow ravines formerly contained running 
water. 

23. There are but few sheep on this range at the present time. 

24. There is no doubt but what sheep will hurt the pasturage for cattle and will 
eventually drive them off. 

25. There has been no conflict between the sheep and cattle men of this section. 

26. I should judge that there was about 30,000 head of cattle and about 8,000 head 
of sheep in this county. Cattle are not herded, but are at liberty to roam wherever 
their inclination may lead them, so loug as they do not cross the borders of a certain 
specified common range. Sheep are all herded ; 3,000 head is considered the maximum 
number to be herded together. 

28. It is somewhat difficult to find the corners of surveyed lands. 

TIMBER. 

1. There is no timber land in this section except the forests of the mountains. The 
timber is pine, spruce, and fir. 

2. There is no timber planted in this section except cottonwood. 

3. I think it is somewhat soon to dispose of the forest-timber lands. 

5. When forest timber is felled there is a second growth, although there is but very 
little timber felled. 

6. Forest fires of this section are caused by Indians who are allowed to leave their 
reservations. The fires are very destructive, and the only mode of prevention is to 
keep the Indians on their reservation and oiler a reward for the apprehension of any 
one who shall maliciously or carelessly set out a fire. 



PUBLIC LANDS. 363 

7. The only use that timber is put to in this section is for building and fencing pur- 
poses and for fuel. The mountains are covered with dry fallen timber, much better 
for buildings and fuel than the green standing timber, consequently there is no waste, 
as the fallen timber will lie there and rot if it is not used. 

8. Timber, when cut into logs or rails, belongs to the chopper. 

9. I think that the custody of the timber should be placed within the jurisdiction of 
the district land office. Mining I know but very little about. 

I have the honor to remain, respectfully, 

JAMES GIBSON. 



Testimony of W. C. Gillette, sheep raiser, Dearborn, Mont. 

W. C. Gillette, of Dearborn, Mont., testified at Helena, September 26, as follows : 

I have lived here nineteen years. I am engaged in the sheep business. I have about 
6,000 sheep. I think about eight sheep are equivalent to one beef. I think about 25 
acres of land will sustain that number of sheep. I own 160 acres as a homestead, and 
there is unlimited range around that. My range does not interfere with other people. 
It is 4 miles one way and 12 or 15 the other. ■ This range is on surveyed land. I hold it 
by common consent. The Territory is not one-fourth stocked yet, and there is no 
trouble as yet between the cattle and sheep men. I think that sheep and cattle can live 
on the same range, provided it is not too heavily stocked. I do not think this land 
should be sold. I think they should be let run. 

I do not favor the pasturage homestead. I would like it myself, but I don't believe it 
would be good for the maj ority of people. Under proper restricti ons, it might be well to 
give a pasturage homestead of 3,000 acres, but I would provide that the settler should 
not have more than 160 acres on a stream, and, where he located, that it should extend 
back into the arid lands. He should not monopolize the whole water supply. 

I do not think that our range decreases under our system of feeding. Our sys- 
tem is to feed on the range until the grass becomes a little short and then move off. 
This gives the grass an opportunity to recover. Through the winter we keep the 
sheep only three months on the home range — we only keep them about fourteen weeks 
at any one point. If the government does not make a pasturage homestead I think it 
will be better to leave this land just as it is. The agricultural land and the irrigable land 
should be taken up under the homestead and pre-emption act as it is at present. I do 
not think there is any hurry about settling the question here. I would be willing to 
allow the stockmen to purchase the land to supply their herds, provided that it was 
positively arid land ; but I think it would be very hard to discriminate. I would not 
advocate the sale of these lands in large tracts, I would rather leave it as it is. I do not 
strictly consider this an agricultural country. I would like very much to take up land 
under the desert-land act, but I cannot make sure that it is desert land. 

The largest number of sheep owned here by any one man is about 16,000 or 17,000. 
They herd in bands of about 3,000. I think there are about 150,000 sheep in the Terri- 
tory and about 300,000 cattle. Sheep average about $2.25 per head, mixed breed, cots- 
wool and merino. We have scab here but no hoof rot — the alkali cures the latter. 
We treat the scab with sulphur, lime, tobacco, corrosive sublimate, carbolic acid, &c. 

I know very little about the timber. I do not think it should be sold. I think it 
should be reserved for actual settlers. We have some coal here within 12 miles of 
Helena. Near my range on the Dearborn there is some that is of fair quality. I 
think there is enough to supply this region. There is some coal on the Dearborn near 
Eagle Rock. There are surface croppings. I once came upon some which I supposed 
to be an old camp fire, but found it to be coal. 

In regard to mines, I think it would be much better if the law should remain as it 
is, but I think parties should be compelled to pay up. There is no land here that can 
be cultivated without irrigation, except in a very few cases, which are phenomenal. 
I think about one inch of flowing water to the acre is sufficient to raise a crop. 

No cattle or sheep men are fencing their ranges here. 



Testimony of E. D. Harrison, assay office, Selena, Mont. 

R. D Harrison, in charge of the assay office at Helena, Mont., testified, September 
27, 1879, as follows: 

Grave questions, involving large interests, sometimes arise here in mineral matters. 
For instance, A discovers a mineral vein, locates his claim under the law, but does 
not take up a patent ; stakes off his claim 600 by 1,500 feet, but does not do any more 
work for a while ; yet he is within the law. B, in working near him, discovers that 



164 



PUBLIC LANDS. 



A is not on the vein — that is, he is not following the direction of the lode — and he dis- 
covers a cropping, say 300 feet, from A's shaft diagonally, and he thereupon puts down 
his shaft and locates a claim and stakes it at 1,500 feet by 600, running diagonally 
to the surface of the side lines of A's claim. Then the question is, who is entitled to 
the ground from A's side lines to B's discovery shaft, for the reason that A is entitled 
under the law to his discovery vein, and to 1,500 feet following the vein, and to 600 
feet across the vein. 

Cannot A now swing his claim around so as to take in part of B's claim and hold it 
under the law ? There is a practical case in this country that I know of. I believe 
it has been tested in some State or Territory, and it has been carried to the Supreme 
Court of the United States ; but I do not know how it has been decided. 

The diagram I now hand you will explain the situation and show the application. 




PUBLIC LANDS. 



365 



I also hand you another diagram which explains itself. It is in relation to the rel- 
ative location of railroad and government sections of land. 

RAIL ROAD SECTION 



1 


2 


3 


4 


5 


6 


7 


8 


9 


O U V L rtlMlV i L 1 i 

10 


i OC.U i iUN 
11 


12 


13 


14 


15 


16 











XJ 



R. R SECTION. 

Sections 5, 6, 7, 8, and 9, of 40 acres each, taken. Sections 10, 11, 12, 13, 14, 15, and 16, of 40 acres each, 
taken under desert land act. Sections 1, 2, 3, 4, of 40 acres, desired to be located by same party and at 
the same time as 10, 11, 12, 13, 14, 15, and 16, under the desert land act, but cannot for the reason that 
the subdivisions are not contiguous. 

The desirable water rights here are all taken up in the valleys in this immediate 
vicinity, and to bring water on the ground requires expensive ditches. 

I took up a range early in the spring under the desert-land act, and down there the 
water is all taken up for a long part of the year out of the Deer Creek, and this has 
been an unusually dry season ; consequently there has been a great deal of quarreling 
among the neighbors there about their water being scarce. 

Owing to the scarcity of water some grain planted died for lack of water, and the 
neighbors quarreled over it. A great deal of ill-feeling sprang up on account of one 
shutting off another's water supply in order to procure enough for himself. 

The theory is now that when a man takes up water rights he is entitled to the first 
right, or all he wants, and the next man is entitled to what that first man left, if he 
wants it, after the first is through. There is hardly any law here ; it is merely custom ; 
it is first come first served. I think there ought to be a law which would define each 
party's rights so far as the water is concerned. There was a case right there on the 
creek where a party on the head of it was located, and he had so diverted the water 
that it did not run back into the creek, and the rest of the people in the neighborhood 
tried to force him to do so. 

I believe in the square location in mineral lodes. It will save or stop half the law- 
suits in existence. I believe in a general mining law for the United States, and I be- 
lieve in the register and receiver of the land office having jurisdiction over the timber 
and mineral lands. In my official capacity I see a great deal of charcoal and wood, 
and I feel confident the parties who made it did not pay a penny for the timber used. 



366 PUBLIC LANDS. 

I think the original locations in mines ought to be filed in the district land offices. I 
think the government, through its officers, should control all this land. 

For the year ending June 30, 1879, the production of the mines was about $2,500,000 
in gold and $3,000,000 in silver. I think there will be an increase next year, but it 
will depend entirely on the water ; for placer-mining is slowly falling off, because the 
ground is being worked over and so much land is being held and not worked. I 
think a man ought to be compelled to pay for a placer-mine and work it. 

I estimate that the yield for the next year will be $3,000,000 in gold and $3,250,000 
to $3,500,000 in silver. I think the estimates heretofore made have been high. 



Testimony of S. F. Hauser, president of the First National Bank of Helena, Mont. 

S. F. Hauser, president of the First National Bank of Helena, Mont., testified at 
Helena, September 27, 1879, as follows : 

I am a mine-owner and capitalist ; I have lived here sixteen or seventeen years. I 
have heard the statement just made by Mr. Holter, and I corroborate it in nearly every 
respect. I think he is wrong about these pasture lands. I believe in the pasturage 
homestead, and I believe in protecting the cattle settlers to the extent of their herds. 
It will prevent litigation, trouble, and fighting. I think the land is worth about 
20 or 25 cents per acre. 

I do not think the increase of rain amounts to anything. I think it is absurd to 
build expectations upon an increase of rain. 



Testimony of L. H. Rershfield, Helena, Mont. 

L. H. Hershfield testified at Helena, Mont., September 25, 1879, as follows : 

I have lived in this country sixteen years, and I know all the country pretty thor- 
oughly. Those lands in the Territory that cannot be irrigated, of course the best 
thing for them is to leave them just as they are, and leave them to the stockmen. I 
think, if they must be sold, I would allow each man to take lands to the extent of his 
herd. If the government retains possession of the land, and permits the stockmen to 
use it, I do not see any difficulty about it. There is a difficulty if men are permitted 
to buy it in unlimited quantities. Then the large man will have all he can possibly 
get, by buying, borrowing, or stealing. He will certainly get it all some way, if you 
allow him to purchase it. I would not lease it. I would let the land be in possession 
of the government, just as it is now, and the government ought to decide what is the 
character of these lands. All our high lands in the Territory, even the second-bench 
lands, would be grazing lands, and all below that would be iriigable lands. 

It is a very serious question for the government to determine what these lands are ; 
they are being consumed too rapidly ; and whereas all these lands are held in trust by 
the government for those who come after us, it should protect them and guard them 
well and not allow any primogeniture — the first son to get all there is. Our lands are 
all good ; for instance, the whole tract of land that lies around here. It takes con- 
siderable money to get a ditch on that land, but the time will come when a colony 
will form here and, by putting the water on this land, fully utilize it. I know of just 
such a place now. It will be a pity to dispose of that land under the desert-land act 
or any other act. Leave it to those persons who want to make homes of it. It is not 
necessary to survey it. Just leave it the way it is, holding it under possessory rights. 
If a person has 50,000 or 60,000 head of cattle, occupying a region 100 miles square, 
his cattle will herd in one -direction, another man's cattle would herd in another por- 
tion within the same boundary ; but if you go to work to establish metes and bounds 
for cattle ranges, other stock coming there would be trespassers, and the occupant 
would have the right to exclude them, because he would want to keep his grass fresh, 
and where would you be if you adopted a law of that kind ? 

They have land in Colorado now, and in this Territory, that is unfit for agricultural 
purposes even if you could get water on it. Take all that northern part of Colorado 
lying east of what we call the " cut-off" from Denver north. Take it along the Bijou, 
although the country is very good pasture land, at the same time it is unfit for agri- 
cultural purposes. 

Now they are taking up land in the Yellowstone, under the desert-land act, which 
is not desert land. That is an injustice to the people who will come to settle on these 
lands. I would repeal the desert-land law lor a country like this; but there are 
portions of the country, down on the Gila, that it would apply to. I am not in favor 
of the pasturage homestead. I would let the present law apply. Let the govern- 
ment encourage these pasturage interests, but do not dispose of the lands, but let the 
government own them and the people hold them by a possessory title. The land is 
now held by mutual consent, and it is well enough. 



PUBLIC LANDS 367 

I do not favor the selling of these arid lands. If surveyed and put in the market 
they ought not to be sold for more than 12^ cents per acre, and if they were sold I 
would limit the amount of each settler to 5,000 acres. 

In this matter of land the timber should be carefully considered. There are two 
evils resulting from the destruction of the timber ; not only the destruction of the 
timber itself, but the change of climate which it produces. I do not know what 
suggestions to make on this subject ; it is a very serious question. 

There is another law that should be enacted and a very severe penalty attached for 
any person who sets the timber on fire. It would not be a bad idea to survey the 
timber in tracts of 160 acres, and reserve to the government each alternate section. 
It will take a thousand years to put this timber back when once it is destroyed. It 
is a matter of great importance. We lose timber, and we lose our rain. I think it 
will be better for the district land department to have charge of the timber. 

The great fault with the placer-claim law is that it does not limit individuals to 
a given area, and does not force him to work it. That is the chief abuse. A per- 
son ought to be limited to the number of claims they are entitled to, and the matter 
regulated in the same manner that pre-emption and homestead locations are. As 
the law stands now a man can take up a piece of land here, and another piece there, 
and there is no limit to the number of claims a person can enter. They do not work 
these claims, but just hold them for speculative purposes. In such cases the law 
should compel them to work the claims. They do not have to pay on the placer 
claims, and they do not do it. I am in favor of the government being very generous 
to placer men ; allow them to get one piece of placer land, to make the selection of it, 
but that is all, and then they should lose their right just as they now do in agricul- 
tural land cases. I think that the interests of the public and the government would 
be subserved by permitting agricultural and irrigable lands, such as there are in Mon- 
tana, to be taken under the present system of location in tracts of 160 acres under pre- 
emption and homestead filings, and do away with the desert-land act giving 640 acres, 
the second-bench lands to be held in common for pasturage purposes. 



Testimony of Anthon M. Holter, lumber and cattle dealer, Helena, Mont. 

Anthon M. Holter testified at Helena, Mont., September 27, 1879, as follows : 
I have been in Montana sixteen years. My business is that of a lumber, machine, and 
cattle dealer. My principal business is lumber and hardware. I have three mills. 
One mill is located on Three-Mile Creek, in this county, and I have another mill in 
Jefferson County, and I have half an interest in another mill in Jefferson City, and 
also a half interest in another mill in Jefferson County. We are probably the largest 
lumber dealers in the Territory. We cut the timber from the public lands. I have 
no title and no land from which we cut the timber. We pay the stumpage. A timber 
agent named Nolan, appointed by the Commissioner of the General Land Office in the 
winter of 1877-'78, gave us notice that he had to seize our material which we had 
cut. The agent gave us no chance to pay for it. He put a man in charge of the 
lumber here, and at the time I went to see Mr. Anderson, the district attorney ; he 
seemed to be considerably in sympathy with us, af?d advised settlement, but did not 
know on what terms it could be settled, and wanted me to make a proposition. It 
went on from day to day. I saw him a good many times, and he advised me not to 
telegraph my Congressman ; but I did send several dispatches, and got answers to 
some of them. He did not make any proposition to me to settle the matter, and I 
did not want to make any proposition. He told me from day to day that the mat- 
ter could be settled. He wanted me to call at his office. He said the matter could 
be settled, but did not say just how. This lasted for thirteen weeks from the time 
our lumber was seized, and. stopped us doing business. This was much to our injury 
and detriment. Of course a complaint was in court, but there was no indictment. 
Before it came to trial a proposition was made by the attorney. His first was that 
we could settle it if we would pay $10 a thousand feet. We sell the lumber at from 
$18 to $25 per thousand. At that time we were selling it for less than that. He 
wanted us to pay $10 per thousand taxes on that, but after correspondence with 
Major Maginnis, the district attorney then said he had instructions to settle it for $2 
per thousand feet. We paid that amount, and that settled it. Besides that we paid 
the costs in the case. It did not injure us so much, as it was in. the winter time, but 
it cost us between $1,000 and $2,000. 

I am well acquainted with the timber land in Montana. It is Georgia pine, spruce, 
hemlock, and yellow pine. There is no hard wood in the Territory. There is some coal 
here not yet developed, but I think there is not enough to supply the people with fuel. 
A great deal of the timber is of small growth. It is not profitable to manufacture into 
.lumber, but it is good for fuel. Not more than one tree in every thousand of the tim- 



368 PUBLIC LANDb. 

ber here is fit for lumber. The timber hero is of slow growth, as Dear as I can judge 
of the age of a tree. I counted one tree this summer, which was 20 inches in diameter, 
and which had 140 rings. The rings were close together. Where the timber is entirely 
cut off, in the new growth it makes a vast difference whether the large trees are culled 
out from where these young trees are growing. We hardly find a large tree for saw- 
logs but what it is rotten inside. That shows that it grows to a certain age and then 
dies. Pine occurs more heavily than spruce, and there are very few trees that we cut 
2 feet in diameter but what are rotten, more or less. Eight out of ten of them are much 
damaged from this cause. A great many timber trees are left standing because they 
are damaged. I think the average age of spruce and pine here is about two hundred 
years; that is, to the best of my knowledge; I cannot say accurately. I have seen 
spruce trees here occasionally 4 feet across, but I do not know how old they were. 
They are not made use of for any purpose ; they cannot be cut into cordwood and are 
not fit for lumber, because they are too knotty. When the timber is cut off it repro- 
duces itself. There is considerable undergrowth here that is growing up into trees. 
The great dearth here is because there is so little proportion of timber that is fit to cut 
into lumber, because where the timber grows large enough for lumber the trees do not 
grow thickly. If it was protected it would grow into fine lumber trees. If the timber 
was not being destroyed I do not think the timber land would increase, even if there 
was no cutting out and burning or destruction. 

I think the timber of the Territory is getting its maximum of growth. I think all 
the timber that would grow is grown and is growing now. My reason for that is this: 
When I first came to the Territory it seems to me that vast fires were more numerous 
then than now. Lightning does not seem to strike the trees now as it used to do. 
Since the country has become settled we are able to control small fires in the timber 
before making headway. The other day a fire got out somewhere in the timber ; my 
men at the saw-mill stopped right at once and worked until they put the fire out. If 
it had not been that there was a settlement near, that fire would have destroyed much 
timber. I think that settlement in Montana has had a beneficial effect upon the tim- 
ber by preserving it from fires. It seems to me a hard question to decide what shall 
be done with this timber. I have thought of it for years past. I have spoken to the 
United States marshal on this subject for the last ten years often, but I really have 
not been able to mature any plan yet. I do not see how the government can put it 
into the market, for this reason : that there are' only two things that timber will be 
used for, one for fuel, and the other to cut up into lumber for mining and building 
purposes. This is all it will be used for. 

The plan upon which the business has been conducted is like this: A man who has 
a saw-mill gets the timber adapted for his mill. The choppers who go into the woods 
cut for both lumber and fuel. They cut over a piece of ground, leaving for fuel what 
is not wanted in the mill. The timber that is fit for saw-mill lumber is so scattered 
that when a man plants a saw-mill he generally has to go miles and miles, and take 
here and there, and allow the rest of the timber to stand. A man cannot buy a large 
amount of timbered land anywhere near enough to supply his saw-mill. On my land 
in Missoula County the timber grows in thicker bodies. I would rather buy the logs 
of individuals than to hunt them up. 

Question. If the land was sold by the government to individuals, to be their prop- 
erty for the purpose of cutting the logs, would they not care for the timber more than 
if they were allowed to camp he#e and there as they are now? — Answer. No. My 
reason is this : Probably farmers would be compelled to buy land for fencing, <fcc. 
Now, they live miles away. They cannot pre-empt it because the live down in the 
valleys, and timber speculators would step in and buy it, and other classes of men who 
do not lay out at night to watch fires. I think it is impracticable to sell the timber 
land, but I have no plan to suggest as to the disposition of it. I think if the govern- 
ment charges in any way, shape, or manner for cutting wood, that it should be left 
principally to the land office here. I do not see that the land office here should not 
have charge of the matter. I do not make this statement for the purpose of avoiding 
the payment of any just dues to the government. I am willing to pay, but there is 
one thing I will object to, and that is this : When a saw-mill man wants to put up a saw- 
mill anywhere he must keep as quiet as possible, simply for this reason, that some man 
will go in ahead of him and cut the lumber down, put his own marks on it, and make 
the saw-mill man pay his price for it. It is the usage here that the man who fells the 
treo owns it. They go ahead of the mill man and Cell the trees and own them. There 
was a grove of timber about 25 miles from here that was cut down two or three years 
ago. It amounted to between 400,000 and 500,000 feet of splendid lumber. The tim- 
ber has been lying there ever since and not sawed up into lumber. It is not rotten 
yet, but it has not done it any good to lie there. This last spring I bought the timber 
of the parties who cut it. They did not pay any Btumpage to the government to cut 
it; and this is where I do not think we were rightly served when we had to pay the 
stumpage for those trees. We paid out to the men who cut them down. The parties 
who cut the timber ought to be compelled to pay the stumpage, ami not the purchaser. 
We bought this lumber last spring. We are sawing it up now. We would rather have 



PUBLIC LANDS. 369 

taken the trees standing because it makes better lumber. It is the usual process here 
to fell timber and then hold it. 

Mr. Brown started over in these hills beyond, down on the Benton Ridge, aud cut a 
few hundred thousand feet ; that is, cut the trees down. He tried to sell the trees to 
us after cutting them, but we were not in shape to buy them at the time, and he tried 
to sell them to others. I offered to lease him a saw-mill if he would saw it into lum- 
ber and bring it into town, and I would then buy it of him ; but we never made any 
bargain. That was five years ago. It was good lumber, the trees probably averaging 
150 years old. I think there was about 400,000 feet of lumber. He finally succeeded 
in getting a man to go in there with a saw-mill, and they sawed a portion of it and 
then they separated, and the rest of the lumber is lying there now. I do not see any 
reason why the lumbermen should not be compelled to pay a license just like men who 
are manufacturing whisky. If the register and receiver had charge of the timber 
land in this district they would know the lands that have been mapped by the sur- 
veyor, and would know where the timber lands were that were fit to cut for lumber, and 
they would give a license to the proper mill men to cut the timber on the public lands, 
and the mill men could show them where the timber was located that they wanted 
to get. In that way they could control the destruction of the timber on the public 
lands. If the government desires to make money out of the timber I think that would 
be as good a plan as can be suggested. I think the question of timber ought to be 
settled as soon as possible ; but, whatever is done in that respect, I think these people 
should have due warning beforehand, for this reason, that cord-wood or timber is sold 
just as though it was seasoned. The parties dealing in it are not making any money 
because they are getting it for nothing, and competition is just as great as it is in 
merchandise. The license would have to be paid by the people, and it would make no 
difference to the dealers. 

Q. Has there been any timber planted here? — A. I do not know of any timber 
planted in this Territory. I do not think timber culture would be a success in Montana. 

Q. Have the rains increased since you have been here ?— A. I think the rains have 
increased to some extent. 

Q. What kind of country do you consider Montana to be ? — A. I have been pretty 
well over Montana, and I consider it a grazing and mining country. All the land has 
to be irrigated that is used for agriculture. Agriculture is profitable here, more than 
in the States I think, because of the markets. I think that one-twentieth is a very 
heavy estimate for the irrigable land in Montana. The country is largely pasturage 
because of the grass, and I think the wealth in the future will probably be cattle and 
sheep. I think the sheep and cattle question is pretty well settled here now by com- 
mon consent. If the country belonged to me I would sell all I could of it. I think it 
will be well to allow a man to take as much land as he has stock. I am not much of 
a stockman, but I think there should be some system whereby the present actual set- 
tlers could be protected. We have had some little forerunner of trouble in regard to 
the water rights. I do not think we have any system of water rights here. There is 
nothing that is really settled. This summer we entered some land down here, and just 
as the grain was growing and we wanted the water, somebody else came and cut a ditch 
and took the water. The strongest man usually gets it. The rainwater has increased 
slightly, but I have not seen any more acres cultivated because of the increase of rain. 
There have been seasons that were favorable to raising crops without irrigation, but 
more that were not. 

Q. Have you any interest in mining or any suggestions to make concerning mining 
matters ? — A. I am a large mine owner and locator of quartz lodes. I think it will be 
well to have a square location in mines. It would stop litigation and quarrels. I am 
afraid though that the square would not operate well in lode mines. Some suits have 
originated from the difficulties of ascertaining what is the true apex of a lode. I 
think the whole business of locating mines ought to be done in the district land office. 

There is one thing I forgot to speak of about timber. It has been the practice here 
to some extent to try to hold timber under mineral claims. They all go to the mining 
recorder's office, and get entries to lands simply for the purpose of holding the timber. 
Whatever is done to the timber, I think the timber rights ought to be separate from 
the mineral. In cases of real mineral location I would give the locator the timber on 
the top of the claim for mining purposes. Where there is timber on a mining location 
that is not previously located the timber should go with the land, but where there is 
a previous claim to the timber that claim should be respected. 

I think that the mining laws shonld be so amended that the attorney in fact could 
perform all the duties of the claimant himself, after the location has been made. 
Simply by advertising sixty days a person is debarred from filing an adverse claim ; I 
do not think it is a good idea. I think a person ought to be notified personally as well 
as by publication. My brother on one occasion happened to see the publication notice 
in time to allow me to make an adverse filing, otherwise I would never have seen the 
notice and would have been subjected to loss. I think it would be a good thing to do 
away with all local laws and use the United States laws. 

24 L C 



370 PUBLIC LANDS. 

Testimony of James E. Kauouse, farmer, Meagher County, Montana. 

The questions to which the following answers are given will be found on sheet 
facing page 1. 



Centreville, Meagher County, Montana, October 1, 1879. 
Public Land Commission, Washington, D. C. : 

Gentlemen : In reply to letter from Department of the Interior asking information 
upon subjects to he reported upon by your Commission, I have the honor to submit 
the following: 

1. My present occupation is that of farmer and stock-grower. 

2. Have lived in Montana thirteen years. 

3. Have acquired government title to 160 acres land under pre-emption law. 

4. Have assisted many of my neighbors in matters connected with entry of their 
land under homestead, pre-emption, and desert-land acts. 

5. When land office was first opened at Helena, Mont., fees at the office for pre- 
emption or homestead filing were from $7 in pre-empting to about $15 for homestead 
filing (uncontested cases). Think it has always required about one year to get re- 
turns from Washington in matters connected with Land Department. 

The requiring a "non-mineral proof" has added largely to the expense of entering 
land. I look upon the requirement of publication of notice to miners a big item of 
expense ; as totally unnecessary. In requiring non-mineral proof the department has 
put the "cart before the horse" so far as the lands of Montana Territory are con- 
cerned ; for they should all be deemed and held to be agricultural and pasturage lands 
until proven otherwise, and not rice versa. 

The cost of a contest in the United States land office at Helena, where parties went 
from here, forty miles, with three or four witnesses each, that came under my observa- 
tion was about $200 for each contestant. Decision of land officers here was in favor 
of the actual settler, but on appeal to Washington he was counted out. 

In another instance a party made an entry under desert-land act of unoccupied desert 
land as defined by the act of Congress. Another party, coveting the land, filed a pe- 
tition and affidavit with the land officers asking to contest the fact of tbe character 
of the land as desert land. The party making entry having no money to spend in 
contesting, withdrew filing and filed a pre-emption on 160 acres same land. The 
other party (No. 2) then made application to enter the same land under homestead 
act. (Apx)lication entertained and trial ordered by local laud officers at Helena.) 
To avoid expense party No. 1 sells out to No. 2 for nominal figure. Such cases would 
seem to indicate some defect in the working of the law under the rules of practice 
laid down by the Land Department at Washington. It would seem that opportunity 
might be accorded to whom it might concern, upon the original filing of a notice of 
intention or settlement, that such settlement once made of record at the land office 
should bar the receiving of applications to enter the same land by other parties 
until the expiration of the time allowed by law within which to make final entry. 

7. The public lands of Montana may be divided generally into mountain and valley 
lands, or perhaps a better division would be to say mountain, foot-hill, and valley 
lands. Valley lands vary in width from 1 to 4 miles generally, and lie contiguous to 
the larger streams of the Territory. An exception is Judith Basin, estimated by one 
of my neighbors at 150 miles in width. This class of lands is never mineral, and is 
always agricultural and pastoral — can think of no exception. Have seen most parts 
of the Territory, but never saw an instance where such lands had any timber, with the 
exception of a fringe of cottonwood on the islands and banks of the largest streams. 

The foot-hills lie between the valleys and mountains proper. They are jtastoral lands, 
and whenever they present a level surface (with such grade that irrigation will not 
wash away the soil) and a supply of water for irrigation can be obtained they are agri- 
cultural. They have no timber beyond a few scrubby cedar. Think exceptions to last 
statement occur principally in Missoula County, where all timber, and particularly 
cedar, does most abound. The beds of small stream* and gulches, before they debouch 
from the foot-hills, also the " bars" formed on the sides of such gulches, are sometimes 
gold-bearing— instance: Bannack (Grasshopper Creek), Virginia City (Alder Gulch), 
Diamond City (Confederate Gulch), Helena (Last Chance Creek), and most if not all 
placers. The towns themselves are situated on what I have denominated as mountain 
land, but the pay dirt exteuds from thence to the foot-hill lands, as described. 

Mountain land is timber land, except when laid bare by fires. It is not agricultural 
and is not pastoral. Upon it are found ledges of gold, silver, iron, &c. It is mineral 
land. Upon it snow falls deep in winter, with rain in summer, when at the same time 
tha roads of the valley 10 miles away are dry and dusty. 

8. By general rule. 

9. Don't know that I entirely understand this question, but think that all valley 
and foot-hill land should be surveyed and plats filed in land officeas soon as practica- 
ble. Reason: All valley and much foot-hill land is filling up with homes of perma- 
nent settlers. See no immediate necessity for the survey of mountain land further 



PUBLIC LANDS. 371 

than the running of suck Hues across the ranges as may be necessary for surveyors 
n c.:veying mines or organized mining districts. 

10. Think present system a good one. 
much improved, No suggestions prepared. 

AGRICULTURE. 

1 and 2. For reply to questions 1 and 2, please see Straborn's book, "Resources of 
Montana." Creeks are usually high at commencement of irrigating season, but fail 
by July when water is still needed. 

3. None. 

4. All such land as I have previously spoken of as "agricultural." Estimates of its 
amount vary from 1(5,000,000 to 25,000,000 acres. 

5. Wheat, oats, and barley are the principal crops. All hardy vegetables do well. 

6. Seventy-rive inches of water, measured under a 4-inch pressure, will irrigate 100 
acres of grain in an ordinary season, giving the land three wettings. 

7. In this immediate section (Missouri Valley, Meagher County) supply of water is 
obtained principally from small creeks flowing from Belt Mountains to Missouri Elver 
Valley. A few ditches are taken from the Missouri River. The latter are expensive. 

8. From observation and experience, think irrigation adds to the fertility of soil. A 
few farms have been located some 10 miles from the valley, close to the timber line on 
the mountains. Have raised fine crops. Should think the altitude close to 5,000 feet, 
or some 1,200 higher than the valley. 

9. All water turned into irrigating ditches is exhausted. An act passed at last ses- 
sion of legislature requires prior appropriators of water to turn same back into main 
stream when not needed by them for irrigating purposes upon notice from parties next 
in order of priority that the water is needed by them. 

10. The water supply from small streams (where ditches could be made at slight ex- 
pense) is all claimed, though early in the season there is a large surplus. In some lo- 
calities the first settlers recorded at county clerk's office their claims to so many inches 
of water, in others they made no " record." The right of priority in claim and use of 
water was usually recognized among the settlers ; laws since passed upon the subject 
of " irrigation and water rights " have been indefinite and unsatisfactory in many res- 
pects and while it is a subject of vital importance to the people of an irrigating coun- 
try there is no subject the legislation upon which is involved in so much obscurity and 
doubt. An act of Congress is needed defining " rights " hereafter to be acquired and 
defining and requiring proof of and the placing upon record of all "rights" acquired 
before the passage of a law on the subject. 

11. A low stage of water during the summer usually brings in its train more or less 
litigation upon this subject. 

12. About four-fifths of land in this valley, having no water, is fit only for pasturage. 

13. I doubt the wisdom of allowing settlers to enter land in larger tracts than is au- 
thorized by present laws. 

14. It is not advisable. 

15. Whenever the cattle number more than one head to 5 acres the range soon be- 
comes eaten out. This section does not differ materially from others in the Territory. 

16. One hundred head, if they subsist solely by raising beef for market. 

17. Making a rough guess, would say from eight to ten head. 

18. The present season there has been no rain and growth of grass has diminished. 
A very wet season would make the range as good as ever. 

19. No, no. 

20. No. 

21. There are good-sized creeks from six to ten miles apart furnishing an abundance 
of water for stock. 

22. Can't answer from my own knowledge, but should think about four head. 

23. Think answer to question 18 will apply here. 

24. They will not. 

25. Cattle men complain that they are compelled to move their herds when sheep 
are brought upon the range they occupy. 

26. In 1878, cattle in the county numbered 30,520 head, and sheep 34,617 head. My 
estimate now would be one-half more cattle and double the sheep. Sheep are herded 
in flocks of 500 to 2,000 or 3,000 head ; cattle are never herded. 

27. No suggestions except as to timber and timber lands. 

28. The survey lines sometimes have jogs of 3 or 4 rods in them and in some few 
places corners are hard to find. I also notice in many places that the only mark for a 
corner is four shallow holes in the ground ; these in a year or two will be completely 
obliterated. 

TIMBER. 

1. The only timber land is on the tops of the mountains, in this section should think 
the proportion about one acre to 100 acres of other land, and of the area named less 
than one-tenth is suitable for any use except fire-wood ; kinds of timber are pine and fir. 



372 PUBLIC LANDS. 

2. None planted. 

3. I would have title retained by United States. Allow actual settlers to cut timber 
for all purposes except speculation, provide that all title or right to all timbers cut 
and left as they fall or piled shall if they are not hauled or used within one year re- 
vert to the United States and be subject to appropriation the same as standing timber ; 
it would tend to prevent speculation in and a great waste of timber (fence-poles piled 
and left in the timber will rot in two years). 

4. 5, 6, and 7. Enact stringent laws with regard to setting out fire on the ranges or in 
the timber. 

8. The most valued of timber by the agricultural population are the places known 
as "pole grounds," where poles suitable for fencing grow in dense thickets. The cus- 
tom has been upon the discovery of one of these places for a number of settlers (any 
one desiring to) to turn out with teams and make a road to the place for wagons and. 
then to cut and pile such timber as they estimate they will need for a year or two. 
Their right to the felled timber is recognized by local custom. Much timber is wasted 
in this way. 

9. I think they would be, but it should be borne in mind that United States district 
land officers as a rule are changed every few years, and their places rilled by men hav- 
ing no previous training for the position, often young clerks or " men about town " 
who have been of service to an M. C. but who "have no peculiar fitness to" act in a 
judicial capacity. These remarks will also apply to question 20, under head of " Lode 
claims." 

Not being a practical miner my answers to questions upon mining subjects would 
necessarily be founded upon hearsay to a great extent. This, together with want of 
time at present, must be my excuse for closing. 

I am, gentlemen, very respectfully, your obedient servant, 

JAS. E. KANOUSE. 



lestimony of Walter McDermott, mining engineer, Lewis and Clarice County, Montana. 

The questions to which the following answers are given will be found ou sheet 
facing page 1. 

Answers to questions submitted by the Public Land Commission. 

1. Walter McDermott ; residence Belmont Mine, Lewis and Clarke County, Montana; 
occupation mining engineer. 

2. Have resided as above for one year and a half. 

3. Have located and recorded several mining claims as agent for others under the 
general mining law of May 10, 1872 ; and as attorney for others have executed all work 
and papers necessary to the obtaining of United States patent for two mining claims 
and three mill-site locations. 

4. The opportunities offered in inspecting mining properties and titles and other 
professional work in Colorado, Utah, and Montana. 

6. Am familiar only with practical working of laws relating to mineral land, and 
defects observed under subhead " Lode claims." 

LODE CLAIMS. 

1. Experience in Colorado, Utah, Dakota, and Montana, inspecting and reporting 
on value of gold and silver mines, and in managing same. 

2. Chief defect in present laws as to lode claims, and origin of nearly all litigation 
within my experience and knowledge, is the false assumption that mineral deposits 
are regular in form and character, occurring solely as a conventional " true fissure 
vein," and therefore contained within well-defined and easily ascertained boundaries. 
A large proportion of the most valuable mineral deposits of the West cannot by any 
means be described as fissure veins ; and the attempt to do so in order to apply the 
present mining laws leads to such inconsistencies as the defining of a great bed of 
limestone a "lode" within the meaning of the law ; and the opposice statement that a 
detached body of mineral within the same bed is also a vein or lode. No law based 
on any ideal form of vein or deposit can ever be flexible enough to cover the many 
different forms of the occurrence of mineral ; and any law, as the present, so based 
must be necessarily fruitful of litigation and injustice. 

4. I understand by the term " top" or "apex" of a lode that portion of the lode along 
us course which outcrops to the surface, or, if " blind," which comes nvan 8t to the sur- 
face of the earth. Neil her the apex, course, nor dip of a vein can always be deter- 
mined in i he early openings. 

5. The intended lights of a discoverer are therefore incases curtailed by such failure 

oe above points. 



PUBLIC LANDS. 373 

6. Within my knowledge litigation has grown out of this. 

7. I have known of such cases. 

9. I do not believe outcrops of " lodes/"' in the proper sense, to be often if ever wider 
than present legal width of claims under general mining law ; but taking the modern 
comprehensive definition of the legal " lode/' w r hich may be stretched to cover astrata 
of rock several thousand feet in thickness, it is likely to occur. 

10. I know of no case, but can readily conceive it with certain surface contours. 

11. To the disadvantage. 

13. Many discoverers of rich veins and their assigns are. The attack is frequently 
directed to the portion of the vein dipping beyond the side lines. 

14. In my opinion it is utterly impossible. 

19. All district mining laws and customs could be at this date very advantageously 
abolished, and a general comprehensive law introduced in place ; but if district rec- 
ords be abolished certain undeveloped unsettled portions of the West will be without 
facilities for the first discoverers of mineral to obtain titles by the preliminary step of 
recording. In all settled districts the United States land officers could with advantage 
to the public keep all mining records. 

21. I would make surface lines vertical in depth the true and only boundaries ; ev- 
erything within the four sides on surface or to any depth the property, undisputed, of 
the owner of the claim, with no right to work beyond vertical planes drawn through 
the surface lines. It would be necessary to increase the present width to perhaps 800 
feet in order on flat dipping veins or beds to give sufficient depth for working, with 
the right to take the location on surface either wholly on one side of the vein or part 
on one side and part on the other. There should be more stringent laws as to the proof 
of a vein being actually discovered before record is permitted. The recording under 
affidavit of discovery should secure possession to the locator for a short period neces- 
sary to prove the course and dip of the vein or nature of the deposit, say ten days, by 
which time he should be obliged to distinctly mark the four corners of his claim, and 
no subsequent change of boundaries be permitted, unless the claim is too large as found 
by regular survey. No arrangement can be made to absolutely secure a first discoverer 
from locating a claim partially to his own loss, since the nature and run of some de- 
posits take years of work to find out, and later locators have their rights. In regard 
to the extension on the dip of a vein already located, the record and location should 
be made avowedly as an " extension on the dip," and in such case proof of a vein ex- 
isting being impossible, the point of representation by bona-fide sinking and exploring 
should be enforced somewhat as in the case of a " tunnel right" under the present 
general law. No claims should lap on surface, and in such case, with vertical planes, 
no litigation could occur in w r orking below. 

22. Considering the expense of obtaining patent, the poverty of many prospectors, and 
the fact that in many places they can do representation work required though unable 
to meet the outlay for patent, the limiting of possessory title would work some injus- 
tice and lead to the custom of letting titles lapse aud relocating to evade the law. The 
benefits at r^resent attending a patent as compared with possessory title are sufficient 
inducement to insure the change from one to the other whenever the property con- 
cerned is of any real value. An immense majority of mining locations are perfectly 
worthless; but in this connection I would suggest the necessity of some regulation to 
prevent the custom of avoiding bona-fide representation work by relocating property 
directly after the expiration of the legal limit within which such representation work 
has to be done. 



Testimony of J. R. Moe, register of the land office at Helena, Jlont. 

J. H. Moe, register of the land office at Helena, Mont., testified. September 24, 1879, 
as follows : 

So far as the voluntary relinquishment of cancellations is concerned I think it should 
be done here in this office ; in fact, all cancellations ought, I think, to be done here ; 
it would certainly expedite the business of settlers. I think the register and receiver 
should have more authority than they now have ; I think they ought to be permitted 
to subpoena witnesses and perpetuate testimony. 

I favor the abolishing of the mineral recorders and putting their business under the 
district land office, provided that a proper compensation be allowed. 

I think the timber land should be surveyed and sold. From my knowledge of the 
timber lands in this country, I should say it should not be sold in tracts to exceed 320 
acres. If they were permitted to buy it, I would, allow them to do as they pleased 
with it afterward ; I should charge not less than $2.50 per acre. When I sold a man a 
mine I would sell him all the timber on the ground and give him jurisdiction over it. 
I don't think the district land office ought to have anything to do with depredations 
on the timber land ; they are not in a position to attend to it, and it should be done by 
the United States district attorney ; I think it should be attended to by other parties. 



374 PUBLIC LANDS. 

I think there should be some method devised "by which the decisions of the General 
Land Office could be communicated to the different district land offices. It takes too 
long to obtain a patent to agricultural land ; sometimes it takes a year and sometimes 
seven years to get a patent to agricultural land, and for mining patents it takes from 
sixty days to three years. 

In the matter of permitting the relinquishment of land, 1 think there are two sides 
to that question. I can homestead a piece here and keep it for five years, and I can 
go off and enter another one, and so on. In some instances this would injure the 
ground and in some other cases it would not, but when a man has .completed his title 
I think it works evil to him. 

There is a case in Deer Lodge. A man with thirteen children lived on his land but 
did not file on it. After living there, I think, about six months or a year, his family 
were all taken sick. His wife died, and he came in here to make his filing perfect. 
After hearing the case I allowed him to make filing. He had a certificate from the 
surgeon that his wife had died upon this homestead, and the surgeon advised the re- 
moval of his family and house about one hundred and fifty yards to higher ground. 
He built a house and lived there with his family and continued to improve this home- 
stead all the time, had it fenced, cut hay, &c, and on this proof I allowed the filing 
entry, but sent it on to the department, and they set it aside, simply because he had 
not resided on the ground. This is a case where it works great injury. The first 
filing of the declaration of homestead should not work forfeiture of the right. Notice 
of filing entry, I think, should be abolished immediately. I think that the forms of 
the Land Office could be immensely consolidated and condensed to the benefit of the 
public and department. 

Concerning pasturage homesteads, I am not clear about it. I would like to know a 
little more about it before expressing an opinion. 

As regards the proposition that in the matter of land that cannot be irrigated the 
present homestead law should be extended to enable a man to take up three thousand 
or more acres, instead of one hundred and sixty, of this arid land for a pasturage 
homestead, I don't think favorably of the idea, for I think it could be disposed of to 
better advantage. The land ought to be disposed of in sections of 640 acres, sold at 
$1.25 per acre. The best you can do for a stockman is to enable him to get a home 
range, for they will not buy the whole territory if they could. They will only buy 
enough to control certain water rights. 

In regard to the sale of these pasturage lands, it might be. well to sell them in small 
tracts, but I am not in favor of a pasturage homestead. 

There is much complaint about finding stakes and boundaries. It is owing to the 
decay of the stake and the imperfect manner in which the work has been done. I 
think it is not owing to the insufficient pay, but only to the slouchy work. This im- 
perfect work was done before the reduction in the price of work. I think the reduc- 
tion of pay has not tended to remedy this defect. I base my views in this matter on 
the reports and opinions of other persons. I will give an instance. We found last 
week parties wanted to locate in the Judith district. They went down there to look 
for stakes and could not find any. They came back here and employed a surveyor for 
$100 for the trip and his expenses. These surveys were made in 1875 and you cannot 
find any of them at all. You would not have expected to find any of the stakes placed 
by one of the deputy surveyors, but those put in by some of the other men you would. 
I think there should be some means of establishing permanent monuments at the cor- 
ners of each section. 

Surveys are often made too far in advance of settlement. For instance, Judith dis- 
trict was surveyed five years ago, and there is not a settler in that district now. Thus 
the stakes become obliterated and the townships are of no use. We had eleven town- 
ships surveyed out here in the Muscle-Shell Vailey, and there is not a filing on it. From 
the complaints I should not think they receive enough, but practically I have no 
knowledge concerning the matter. 

Question. Do you think that during the last two years the surveys have been made 
in advance of settlement ? — A. I do not think that the bulk of surveys of the last two 
years have been made too far in advance of settlement. The surveys north of Butte 
were made, some of them, in accordance with instructions from the department. To 
have the survey extended down into Willow Creek would be needless. 

I do not think the desert-land act ought to be repealed, nor do I think that it has- 
been abused, and inasmuch as the homestead act contains a pre-emption clause, I do« 
not know of any reason against repealing the pre-emption act. 

There is another point. I think the register and receiver ought to be allowed to* 
take testimony, thus saving much loss and trouble to the settlers. I believe in ex- 
tending the same rights to the final pre-emption as are extended under the homestead- 
act. 

In placer claims I think there ought to be a limit to the final entry, but in lode 
claims I do not think so. 



PUBLIC LANDS. 375 

In the matter of the sale of delinquent rights in mines, we are governed by section 
2324 of the Revised Statutes. We have no local law on the subject. In counection 
with this local mining business I think the law ought to be amended so as to allow 
an adverse claim to be filed by the attorney in fact instead of by the person himself, 
The law should be so amended that the attorney in fact may be allowed to do every- 
thing — the notice of intention and posting included. It has been so here until this 
month and was never questioned. In certain cases before this office application was 
made by the attorney in fact on behalf of the parties, then absent in the East, to trans- 
act the business of their clients. The Land Office at Washington attempted to set- 
aside the action taken by the local office here, the Commissioner ruling that attorneys 
in fact could not appear for parties who were absent. I do not think the Secretary of 
the Interior will sustain the Commissioner's office in its ruling. 

There are no conflicts here between cattle and sheep men, although I know very lit- 
tle about that. My opinion is only from hearsay. Neither am I familiar with the 
system of irrigation and its workings in this district. 

I think there should be more rulings made by the departments, and I think they 
could give better instructions. 

I know of no better way of disposing of the public land than through the register and 
receiver. I think the present rectangular system of disposing of the land is simple 
and effective. 

I think the register and receiver of the land offices should receive a salary instead of 
fees. 

The additional homestead act of March 3, 1879, should be amended, so as to allow par- 
ties to take an additional homestead, though not contiguous to their original entry. 
There should be a register and receiver's fee of $6 in each case. 

The timber-culture entry act of June 14, 1878, should be extended to the Bitter-Root 
"Valley lands. There is a separate cash entry kept of sales of those lands, and the pro- 
ceeds go to the Flathead Indians. By the act of February 11, 1874, the homestead priv- 
ilege was extended to these lands. 

As regards surveys, I think there is a point. Where there are no surveys between dis- 
tant surveyed points, I think that the rectangular method should be used to locate points 
for the settler. I think there is one such case now, where it will be necessar3 r to run 20 
or 30 miles of chain in order to locate a point. 

There is another idea that seems to me could be carried out. It is to have a portion 
of the appropriation of this district set aside for surveying those small fractional town- 
ships which are outside of the regulation survey. 

There have been 277 entries made since April 1, 1877, and most of these were along the 
streams. If the square location will destroy litigation I am in favor of it. It would, of 
course, work a hardship to some persons. We have 522 mines patented in this district. 
We have had 722 mineral locations. There are 200 applications in this office from parties 
who have not made their final entries. This is owing to a defect of the mineral law, as 
that does not require miners to make their final proof in a specified time. 

In regard to placer claims, there is neither a United States nor Territorial law com- 
pelling a man to complete the entry. They file the application and leave it. We have 
about 100 placer-claim applications. They ought to be compelled to make their final 
entry. They just make their claim and' hold it. They do not work it. With lode 
claims it is different. United States law gives them possessory title, and if they do 
not choose to have a patent issue and get an absolute title they need not. It would 
be better for all parties if they were compelled to make final proof ; but if a j^erson 
chooses to hold it under a possessory title he can do so. It is absolutely impossible for 
a deputy surveyor to make accurate returns concerning the mineral character of lands. 
He is better able to determine the character of the soil. A deputy surveyor sees a crop- 
ping of coal, and on the strength of the cropping he returns all the land in the vicinity 
as coal land. I think the best way to determine the character of the land is to deter- 
mine its character when you make its final proof. 

I think the trouble regarding inaccuracies in survey maps is that the clerks are 
slouchy. They do not take the trouble to put down the topography as returned by 
the deputy surveyor. 

I think that about one-sixteenth of the lands in this district can be irrigated. A 
large portion of the lands surveyed in Montana are simply arid land. We have 490 
township plats in this district, and of these there are many of them that have not a 
settlement in them. That land should never have been surveyed and subdivided. 



Testimony of John T. Murphy, Helena, Mont. 

Helena, Mont., September 26, 1879. 

1. John T. Murphy, Helena, Mont.; merchant, miner, and cattle and sheep raiser. 

2. Have lived in Montana Territory sixteen years. 



376 PUBLIC LANDS. 

3. Have filed on 640 acres land under the " desert-land act ;" have not yet sought to 
acquire title. 

4. Know nothing as to the practical workings of land laws. 

5. Have no personal experience or knowledge. 

6. Am not sufficiently conversant to venture an opinion. 

7. The public lands of Montana are agricultural, pastoral, mineral, and timber lands, 
and by far the largest area being pastoral. 

8. Believe that no general rule would answer for the whole Territory, nor do I think 
the several classes of land could be fixed as to character by geographical divisions. 
The pastoral lands in onr Territory could be defined very easily as being such lands 
devoid of water for irrigation, or very difficult and too expensive to put water upon 
them, and in not having any timber, or but little, upon them. The agricultural 
lands in Montana Territory, as a rule, lie contiguous to the pastoral lands, and either 
have water upon them already, or can have water put upon them at not too great cost. 

9. Concerning agricultural lands, I think the present system of parceling good 
enough. Pastoral lands, I think, should be disposed of by the government in larger 
parcels. 

10. Think the existing land system good enough, except in regard to the pastoral 
lands. These, I believe, would "bring in a revenue to the government if put upon the 
market at a low price in large parcels ; as now, under the present system, they are not 
settled upon nor located at the present price required for them, but are used by 
the stock owners, and without revenue to the United States, Territory, or county. 

AGRICULTURE. 

1. The climate of our Territory is, in my opinion, good; the rainfall not sufficient in 
all years ; length of the growing season short ; snowfall not excessive ; a fair supply 
of water in most sections for use on such lauds as can be reached cheaply. 

2. From the 15th of May to the 15th of June generally, and in large quantity. As a 
rule the greater supply of water comes earlier than when most needed for irrigation. 

3. A very small proportion, and that which can is cold land and not good for culti- 
vation on account of early frosts. 

4. Perhaps one-twentieth. 

5. Wheat, oats, barley, rye, and most of the vegetables. 

6. Am not sufficiently informed. 

7. All the streams flowing into the Missouri River on the east side and the streams 
flowing into the Columbia River on the west side of the mountains. 

8. 9, 10. Am not informed on these three subjects. 

11. Conflicts have arisen among the farmers in the Prickly Pear Valley, Lewis and 
Clarke County, in relation to water rights during dry years. 

12. Fully three-fourths. 

13. To some extent perhaps, but limited ; think not less than three thousand acres 
nor more than five. 

14. Think to actual settlers pastoral lands should be sold, and quantity not limited. 

15. Think perhaps twenty acres in some sections of the Territory, and more in other 
sections. 

16. Cannot answer, not knowing. 

17. Do not know. 

18. Think the growth of grass has diminished. 

19. Cattle ranges are not fenced ; do not think it safe to confine cattle in winter by 
fences on the range. 

20. The quality of herds could be improved by being confined to specific ranges, but 
the same result can be obtained on the range at large. 

21. The Crazy Mountains, lying between the Yellowstone and Musselshell Rivers, 
furnish the water for the range I allude to especially. 

22. Am not very well informed on this point. 

■ 23. Think the growth of grass has diminished. 

24. Cattle do not like to graze on same lands with sheep. 

25. No conflicts have arisen between sheep and cattle owners on my range, there 
being as yet but few sheep there. 

26. On the Musselshell Range, Meagher County, I think there are 40,000 head of 
cattle and about 20,000 bead of sheep. Sheep are herded in flocks of about 2,500 head, 
and the cattle run at large ; there being perhaps forty owners for the 40,000 head of 
cattle and say six owners for the 20,000 head of sheep. 

27. Have none other. 

28. Do not know. 

TIMBER. 

1. The timber land is confined to the mountains. The ditlerent kinds of pine. 

2. No timber is planted. 

3. The timber lands in Montana Territory are on the mountains, and worthless ex- 



PUBLIC LANDS. 377 

cept for the timber. Think these lands or the timber upon them should not be sold or 
leased, but left, free for the uses and benefits of the people at large, who are settled in 
the towns and valleys, for the following reasons : If sold or leased only a few favor- 
ably located tracts would be leased or bought, and these by speculators to sell to the 
miners and other settlers ; while the great area of such lands would not be bought by 
any one, but would be used nevertheless, and without revenue to the government. 

5. The second growth, I think, is of same kind as now exists ; growth slow. 

6. A great deal of timber is destroyed by fire, and as a rule resulting from careless- 
ness ; think it next to impossible to prevent them entirely. 

7. Do not think timber has been unnecessarily wasted in our Territory. 

8. Am not informed. 

9. In some localities, yes; in others, no. 

LODE CLAIMS. 

While I own lode claims, I have too little general information on the subject to at- 
tempt to answer the various questions. 
Very respectfully, 

JOHN T. MURPHY. 



Testimony of John T. Murphy, stock-raiser, Helena, Mont. 

John T. Murphy, Helena, September 25, testified as follows : 

I have lived in the Territory since 1864, and I understand it pretty thoroughly. I 
am in favor of a pastoral homestead. I, with others, located on the Musselshell, where 
there are about 40,000 cattle, having about thirty owners. We range in the valley of 
the Musselshell, on both sides, immediately north of the Crow reservation. The peo- 
ple that we keep there are annoyed a great deal by bands of Indians wandering over 
there. They claim to be Crows and Gros Ventres. They are reservation Crows, but 
really live there on the river. They number over 1,000 when they are on the reserva- 
tion. In the winter time when they want cattle they catch ours. This is not the 
worst of it. There are hostile Sioux Indians who come in there from British America 
and from Fort Peck Agency. Whenever they are away from their reservation they 
are hostile ; they will steal horses and cattle. Right here, about the 12th or 13th of 
June, not more than eight miles from the corral, a band of Indians jumped two of our 
men and got everything they had and shot at them. Last winter they killed a good 
many cattle and ate them. It is a material matter and a fact that when the Indians 
are around there we don't know whether to allow them to come up in friendship or 
shoot at them on sight. I know of many people who have been killed in that way. 
The Crows are not supposed to be hostile ; they are supposed to be friendly Indians. 
But that country is supposed to be white man's country, and they ought to be kept out 
of there ; they should be located where they belong, on that reservation. The River 
Crows have never been placed on the reservation, and those who are on the reserva- 
tion are never restrained at all ; they let them leave the reservation. They camped at 
the mouth of the American Fork last year. It is not an uncommon thing to have men 
killed and nobody knows who did it. A very large portion of that reservation does 
them no good. It is not a game country, and they have not got to raising any cattle, 
so that they do not> want it. They ought to be made to wear some uniform or some- 
thing, so that we would know what they were. Right at the corral there came up a 
band of Indians who we did not know, but we supposed them to be Crows and Gros 
Ventres ; but since then we have found them to be Sioux. The chances are that these 
Indians would have killed the whole party ; but at the time we did not think about 
it, but supposed them to be Crows. They said that they were Crows. There was a 
negro with them, with his hands and feet off, and he said the Sioux Indians cut his 
hands and feet off when he was a boy, and the Crows took him and raised him and 
he had been with them ever since. We learned since then that there never was such 
a person among the Crows. The Crow Indians never have anything to show who 
they are. 



Testimony of Benjamin Franklin Potts, governor of Montana Territory. 

Benjamin Frankmin Potts, governor of Montana Territory, testified at Helena, 
Mont., September 27, 1879, as follows : 

I should not think this was entirely an agricultural country. It is only agricultural to 
a limited extent. There is no land here that I can point to as really agricultural land 
without irrigation. There has been crops raised here without irrigation, but they are 



378 PUBLIC LANDS. 

exceptional. I think one-twentieth, for irrigable land is a liberal estimate. There is 
here much land on the mountains which, is irrigable if you could get water on it, but 
this cannot be done. The bulk of the land is mineral and pasture in character. I be- 
lieve that good farmers — I mean skillful ones — could raise all the agricultural products- 
in this Territory, and that such products would sustain a million of people. 

The timber lands are not now being so largely denuded of timber as they were. 
They have never been trespassed upon to,the same extent as in other Territories. Then 
the Indians very often set fire to the timber, but now that they are on reservations the 
difficulty is somewhat removed. If they were kept there we would not have so many 
fires. Prospectors are more careful and they seldom set the timber on fire. Settlement 
here has tended to protect the timber to a great extent. I think it ought to be sold or 
protected. I would survey and sell it. If the ownership was in individuals it would 
be better taken care of. There would be great difficulty in protecting this timber or 
in adopting a system that would protect the land. 

Private timber land will protect itself, but the difficulty.is to protect the govern- 
ment land. In case alternate sections were sold, the settlers would take the government 
timber and preserve theirs. I think the timber would be better protected if it were 
placed in the hands of the register and receiver. This thing of sending foreign tim- 
ber agents around is very obnoxious to the people here. I think $2.50 per acre would 
be little enough for the timber land. There is enough timber here for the supply of 
the people for a long period. 

There is coal in the Territory, but it has not been very much developed yet. There 
is coal along the Missouri River, and there has been coal discovered here in the mount- 
ains. 

I think the government had better sell the pasture lands, so as to protect the actual 
settlers and cattle raisers. I favor the pasturage idea of 3,000 acres to each individual. 
If this country was divided urj into homesteads of 3,000 acres it would sustain an enor- 
mous population. The object is to provide for actual settlers. I think the sooner the 
question is settled the less difficulty there will be between the different interests of the 
country in the future. If the men had. large ranges they could move the sheep and cat- 
tle from one part of the range to another, and thus keep the grass always in good condi- 
tion. If a man owns his property he will take care of it and improve it ; but if he is sub- 
jected to inroads by other persons he will not do so. 

I think if these lands are worth anything they are worth 25 cents per acre. I should 
rather have the land sold outright than to have this method of living on it, and when 
they come to prove up they will lie about it and perjure themselves ; so I think it would 
be better for the government and everybody else to sell the land at low rates. 

I think the general law of the United States ought to govern in all mining locations. 
And I think the recording of mining claims ought to be put in the hands of the register 
and receiver of the district land offices. 

Some years there is more rain than others ; but probably the average for three years 
is not much greater than it was formerly. I do not believe in waiting on climatic 
changes to effect the sale of these lands. Life is too short for that. 

The great need of Montana is people. 

The theory of the government land system ought to be so it will meet the require- 
ments of the most people. 

Agriculture pays for the number of people engaged in it ; but farmers cannot sell the 
surplus they raise, for there is no outlying market at present. There is not enough 
people. Flour is cheaper here to-day than it is in Ohio. 

I think these Indian reservations might be curtailed with safety and the land used for 
settlers. 

The Crow reservation would make an empire as large as all France. About one-third 
of the Territory is taken up by Indian reservations. The area of the Territory is about 
143,000 square miles. The Crow reservation, the Blackfeet reservation, and the Flat- 
head reservation are the best lands in the Territory, and I think they could be curtailed 
three-fourths and yet the Indians have plenty of ground. They are of no value to the 
Indians at all. There is no game, and there is much more land than they will ever need 
to use for agricultural purposes. These Indians have to be fed; these great reserva- 
tions are great drawbacks to settlements. The Indians will not allow the settlers to 
drive their cattle, while on the way out of the Territory to a market, across the reser- 
vations. In the winter Indians go out of their reservations and kill cattle. They are 
not kept upon their reservations, although they have a rule that the Indians are not per- 
mitted to go off it unless on permission from the Interior Department. Whether the 
Interior Department gives them permission or not they go. 

There has been a great deal of causeless litigation here. There is less now than here- 
tofore, because the United States law applies here now. There are very few mineral 
districts made in here now. 

Sheep and cattle will, to a certain extent, range on the same ground. If the range 
is short, the cattle go off, while sheep can do better on a short range. 

I think it will take less than 30 acres to range one beef. A man can take 10 acres, 



PUBLIC LANDS. 379 

fence and sustain a beef, but oftener I think it will take 20. Five sheep, I think, are 
about equal to one beef. If sheep and cattle are put on the same range, the sheep will 
eat the grass off very close, but you move them off on to another range, and in a short time 
the grass grows up, and the cattle come on where the sheep have left, and you cannot 
get the cattle away from that range at all. It appears they prefer the grass grown up 
after the sheep have left to that on any other kind of ground. 

I do not think there is that conflict between cattle and sheep owners that people 
represent. 

There is really no law here as to the water right. I think there are some laws, but 
they are all in a chaotic condition. The courts have been deciding this question again 
and again, until they are all at sea on it. I think it would be better if there was a law 
of Congress on the subject. 

I would sell the timber separate from the mines, in order to save timber ; but if a 
man has bought a mine, I think he should take the timber on his ground for the use of 
the mine. 

Settlers complain that there are no monuments or marks to indicate where the public 
survey is in three or four years alter it is made. There is more land surveyed here 
than can be sold for years to come. Land has been surveyed where it ought not to 
have been. 

I do not favor any change in the rectangular system. I think it is a good system,: 
provided it is properly carried out. I think there are changes which, if made, would 
be a remedy to many little evils. I think the surveyor- general's office is a good thing. 

The forms of the land office could be simplified and condensed, and attorneys in fact 
should be allowed to do all that the claimant can after he makes his original location. 

There is another thing. The whole system of acquiring title to the public land needs 
to be simplified, but with this circumlocution it is almost impossible for a man to get 
anything. 

There is another thing that ought to be done. This classification of the land should 
be more carefully made. If it is agricultural land and set down as mineral' land an 
applicant is put to heavy expense to prove it is non-mineral in character. 

In consideration of the fact that two or three railroads are coming in as rapidly as 
they can, I think these questions ought to be taken hold of by Congress and settled,, 
as they will materially affect the prosperity of this country. 

. I think the real wealth of the Territory is stock-raising, and the bunch- grass is worth 
more than all the mineral of the country. The hills are covered with it to the very 
tops. When I came here nine or ten years ago they did not raise any wheat ; they had 
to bring it all here. It was not believed that we could raise wheat that would make 
good bread. We had to pay $10 for a sack of 90 pounds in those days. We can grow 
all the cereals and I think can raise all of the fruits and a very fair crop of corn, while 
we beat the world on potatoes. 

The highest altitude of irrigable land is not more than 4,500 feet, but I think it will 
take a great deal of capital to irrigate these large bodies of land, and I think the gov- 
ernment should assist irrigation in every possible way. 

There is a tract of 5,000,000 of acres that could be irrigated by aggregating capital or 
by large cotapanies. 

The manner in which placer claims are held here is all wrong. If a man makes a 
filing for a placer or lode claim he ought to pay for it within a reasonable time. There 
ought to be some limit. The development of the best mineral portions of this country 
has been retarded by persons who have made placer claims just for speculative pur- 
poses, and by not paying for and working them. 



Testimony of Frank P. Sterling, receiver of the land office at Helena, Mont. 

Frank P. Sterling, receiver of the land office at Helena, Mont., testified as follows : 
I have read the statement of Mr. Moe, and, with some exceptions, I concur in it. I 
do not concur with him in the matter of disposing of lands for pasturage homesteads. 
I think in certain localities these arid lands should be disposed of at a nominal price 
for pasturage purposes. I confirm the complaint made of bad work in the matter of 
locating stakes from my own personal observations. The number of applications that 
come into the department to amend homestead filings is evidence of the errors com- 
mitted in the matter of surveys. 

We have a great deal of trouble in determining the non-mineral character of lands| 
and we have a great many such cases which cost the settler a great deal of money — 
from $15 to $25— which, of course, he has to pay. I see no way to determine the non- 
mineral character of lands except by receiving testimony; on that point. It is all 
guesswork except where testimony is taken. 



S89 PUBLIC LANDS. 

Testimony of Howell H. Mason, surveyor-general of the Territory of Montana. 

Rowell H. Mason, surveyor-general of the Territory of Montana, resident at Helena, 
testified, September 24, 1879, as follows: 

I have been surveyor-general for two years ; I was appointed in October, 1877. I 
Relieve thoroughly in the rectangular system. I think it is the one best adapted to 
the wants of the people and the most economical to the government in every way. I 
think that the ruling of the department — I do not know whether it is bised upon law 
or not — that all lines of surveys should be discontinued at the point of their inter- 
section with auy military reservation, should be modified so as to permit the extension 
of base and standard and meridian lines through the reservation for the purpose of 
securing more perfect uniformity in the surveys. I think, too, that the entire country 
should be surveyed into townships, but perhaps not subdivided. (I may say here that 
I am giving you the ideas I have suggested in my annual report.) 

I believe in the value of topographical knowledge of the lands. This, again, would 
more than equal the cost of surveying ; and in making these surveys the deputy sur- 
veyor should return full field-notes. He should describe the land in a township, as far 
as practicable, and examine and classify it as to whether it is mineral, agricultural, 
arid, &c. He does not virtually do that now as fully as it should be done. For in- 
stance, a deputy in turning in his field-notes specifies the character of the soil as simply 
first, second, or third rate. Now, that classification should be increased, and it should 
be defined as to what constitutes the first class, second class, &c. I think the classi- 
fication can be reached through the deputies in subdividing. The field-notes of the 
deputies generally are not of such a character that the surveyor-general will be able 
to judge of what lands should be subdivided. It might possibly be advantageous for 
two or more lines to be run so as to divide a township into quarters, for if that were 
done I think the classification could be made quite complete. Where exterior boun- 
daries are run, if at the same time they run east and west and north and south lines 
through the townships in subdivision, these lines would have been already run. 

Question. Do, or do you not, think that triangulation would be valuable in cases where 
mountains or large areas of useless grounds are involved? — Answer. Yes; I certainly 
think so, if they were paid for it. The object would be accomplished just as much as 
if it were chained, without the cost of chaining. My idea is to keep up a complete 
and whole square system of surveys. The worthless tracts might be triangulated, so 
as to avoid chaining. I think that the whole country ought to be surveyed in some 
way or other. These irregularities in the mineral surveys are due to the fact that the 
surveyor hate nothing to tie to. 

I think that the rate of compensation for surveys should be increased. I would 
suggest for section lines $8, for township lines $10, and for meridian, standard, and 
base lines $12. Meandering lines should be the same as standard lines, for the reason 
that they are the most difficult lines to run of any. You take meandering along a 
river and through brush. I have had a great deal of experience with them, during the 
last two years, in surveys along the Yellowstone. I have personally inspected a large 
number of these surveys, and I have been with a party when meandering, and have 
run lines, and I know many cases where there were 30 acres between two section cor- 
ners, and sometimes as high as 64 acres. Now if the deputy surveyors could get the 
locus of their contracts executed and could work without any delays or hinderauces, 
the present rates would afford them fair compensation for their own labor. But, in 
the first place their personal risk should be taken into consideration ; and they are ex- 
posed to constant loss, not only from the weather, but from their stock being stolen 
by Indians, and from their men leaving them through fear of the Indians. Twelve of 
my deputies have suffered considerably from these causes. The argument might be 
made that surveys should not be made in dangerous localities ; but in this district, in 
the first place, they are all dangerous, outside of settlements, and iu the second place 
it is the policy of the government to have these lands settled. The people are on them, 
and they require the surveys. I do not think there has been a subdivision in the 
Yellowstone in the last two years in which there is not a settlement. 

Q. Have your deputies used the solar instruments? — A. Yes sir. 

Q. Do you think anything would be gained by supplying them with aneroid bar- 
ometers?— A. Yes, I think there would. I think the timber lands surveyed should be 
sold in tracts of 320 acres, at $2.50 per acre. 1 make no distinction between subter- 
ranean rights and surface rights. Another point : I think the rule restricting from 
sale the timber on the non-mineral lands should be abolished. I think the non-min- 
eral timber lands should be surveyed just as much as any other lands. For instance, 
in a great portion of the timbered section of this Territory there is mineral under- 
neath it, and I think that the timber should g<> with the mineral lauds; and I think 
that the timber lands should be subdivided and the timber should be sold, irrespect- 
ive of mineral, for the reason that this timber is near mills and mines, and I believe 
that it would be purchased by mill and mine owners for their own protection, and to 
have it near them so that they could get at it. 



PUBLIC LANDS. 381 

There are many fires in the timber in this territory, but to my knowledge there were 
none this year. We have spruce, pine, and fir timber here. I consider this county very 
well timbered. From information I know there are large bodies of oak on the upper 
waters of the Tongue River. There is some white and black ash down toward the 
other end of the territory. 

In regard to the pasturage lands, I think they should be surveyed and sold in 
limited quantities. I do not believe in the theory of the pasturage homestead. I 
would sell them at not more than 50 cents an acre, and I think they might be sold at 
25 cents an acre. It costs 4 cents to survey them. I should think four sections would 
be enough for one person. 

I think the idea of permanent stakes at each corner of every township a very good 
one. In Judith district, when the survey stakes were put down there the Indians came 
and dug them up, supposing there was something cached there. 

Another point in regard to the inspection of surveys : I think that the surveys should 
all be inspected by the surveyor-general whenever he can, and if not, by some competent 
person to be appointed by him. The inspecting surveyor should take out a party — as 
many as he wanted — not only one man but he should have his chainrnan and flagman, 
and he should run the lines and examine the comers and see generally whether the 
work was properly done. At the same time there should be a small appropriation made 
for that purpose. I don't care how good a deputy surveyor is, his work would be bet- 
ter done, especially that part performed by his assistants, if it is known that a thor- 
ough inspection is to be made. 

Another point : I think an appropriation should be made to allow the surveyor-gen- 
eral to make preliminary observations of different parts of the district in order to deter- 
mine the loeus of the surveys. That would not be as important if this system of survey- 
ing township lines, and especially running cross lines throughout the center of town- 
ships, was carried out ; but unless this is done I think the surveyor-general should have 
an appropriation as suggested. According to the present system the surveys are located 
either from the personal knowledge of the surveyor-general, or reports of deputy-sur- 
veyors, or in consequence of petitions. The first two are good as far as they go, but 
there is the danger that deputy surveyors will report in favor of surveys in regions 
where there is good running, and where there has generally been petitions from per- 
sons in the locality. The office has no knowledge as to the necessities of the case, and 
cannot tell whether that survey should be made or not. There are persons who want 
a survey made, and you survey a whole township, when there won't be but one section 
that is fit for cultivation. The difficulty is that the appropriations made for surveys 
are too small. My appropriation for this year has already been used up in surveying 
the tracts that are needed, and we have applications for surveys, and we have no 
money to make them. 

I think the compensation allowed the surveyor-general is too small. The appropri- 
ation for clerical hire is also too small. During the last fiscal year I performed a great 
deal of clerical labor in addition to the duty required of me, and I kept an account of 
the work that was done in the evenings that I cannot pay extra for, and I worked with 
my clerks for nearly four months during the year in the evenings, and got the work up. 

I do not object to the present method of having mineral clerks. There is this one 
thing about that, the mineral clerks should receive pay for only the time they are act- 
ually employed on mineral work ; and whenever the regular clerks in the office are 
employed on mineral work they should be paid out of the mineral fund for the days 
or parts of days they are so employed. While I am frank to say that I have not fol- 
lowed this system, I have paid the mineral clerk for the time he has been employed 
out of the mineral fund, and the other clerks out of their fund. Sometimes there will 
be a press of mineral business and I will put all three of the clerks on that work ; and 
then again there will be the public surveys, and I will have all three of them at work 
at that. I think the rule should be modified or revoked. 

The salaries paid the clerks is sufficient, in my judgment, but there is not appropri- 
ation enough to allow a sufficient number of clerks. The office work requires more 
clerks than I am willing to pay, and the reason is that there are a great many hurried 
surveys and I have not clerks enough to keep the work up as people demand it should 
be kept up. 

Q. Under what local mining laws do you work ? — A. There are no local mining laws 
here ; all use the United States laws. 

I think there should be an inspection of mineral surveys allowed. Mineral surveys 
should be inspected in each district for the purpose of accuracy, in order that they 
might determine the quality of the surveyor's work. 

I think it would be a convenience to the public if the surveyor-general had a seal 
and could furnish a certified copy of documents in his office on request. There is no 
seal for the surveyors-general of the land offices. I think they should be allowed to 
charge a compensation for the records they furnished. That money might be turned 
over to the department. There are a vast number of records in the surveyor-general's 
office which the district offices do not have, and therefore the people have to get them 
from the surveyor-general. 



382 PUBLIC LANDS. 

I think there should be some responsible representative of the land department here 
in this district, and I believe that the best way of transacting the public business would 
be by some responsible head (in the different States and Territories), and I believe this 
the best way to satisfy the public, especially in mineral cases. If the business is to be 
referred to Washington there must be delay. 

There have been 75 mineral surveys since 1868. 



Testimony of Granville Stuart, Helena, Mont 

txRANViLLE Stuart testified at Helena, Mont., September 28, 1879, as follows: 

I think I can safely say that this will ultimately be an agricultural territory. I 
think that about one-twentieth of the Territory is capable of irrigation — that is, by 
the streams, and I think that can be largely increased by artesian wells. I think 
there is no doubt about that. The nature of the underlying rock is such as to enable 
them to utilize artesian wells. I am satisfied that they would be a success in all the 
valleys of the Territory. Fully three-fourths of these lands are pasture lands. 

Montana is an exception to most Territories in that respect, for the mountains are 
covered with grass to the very tops, except where the timber is. Mount Powell, very 
near Deer Lodge, by barometrical observation has been estimated to be 10,224 feet, 
-and the timber grows on it to about 8,500 feet. That seems to be the altitude at which 
it will grow on the mountains generally. The timber is what we call red fir. It varies 
in localities in this vicinity. There is a large amount of what we call yellow pine, 
which grows to about four feet in timber. It is what is known as the long-lived 
Georgia pine. The red fir makes good building material, most equal to hard wood. It 
is objectionable for planks, because it splinters in sawing. There has been very little 
unnecessary depredation on the timber here. There has been a great and enormous 
destruction by fire. Our Territorial laws are very stringent ; the penalty is a heavy 
fine, and it is a penitentiary offense to let fires begin through carlessness. No one has 
yet been convicted. In early days there were two causes for fires : one was the In- 
dians traveling through the country, and for the purpose of driving the game they 
would set fire to the grass ; and the other cause was the universal " prospector." The 
prospector went everywhere and was perfectly reckless. They would sometimes set 
fires gratuitously, but usually by leaving their camp-fires burning by old logs. The 
fires are decreasing, because the Indians are confined to reservations, and much less 
prospecting is going on. It is now confined to the lode claims, and less placer pros- 
pecting is going on. I think about one-fourth of the land of Montana is timber. I 
cannot think of any system by which these lands may be disposed of. I think it would 
be much better cared for if individuals owned it, but the trouble here comes in, how 
are you to discriminate. The timber that stands on the lower portions of the mount- 
ains, being accessible, is much more valuable than the timber farther back. Most 
of our timber will necessitate road-building to get it out. It seems as though the 
price should be in proportion to accessibility. I don't think the timber ought to be 
cut off, because I think it would affect the climate very much, and it would take many 
hundreds of years to restore this timber. It may have been eight hundred years in 
forming. The smaller growth of white pine timber would perhaps grow in a hundred 
years. It never reaches any large size, but is excellent for fencing, mining purposes, 
&c. I think the timber question would be better administered if put in the hands of 
the local register and receiver. My idea would be to have the register and receiver 
devise some system of protecting it. The present system is very crude, and great in- 
justice is worked upon our citizens by those timber prosecutions here last year (mean- 
ing prosecutions instituted under the Interior Department for depredations on public 
timber) in that they had no opportunity to acquire title to this timber whatever, and 
it was absolutely necessary that we should use the timber. We could not exist with- 
out it. They came and took snap judgment on every one. There was no unnecessary 
destruction of timber. It was cut for actual use and consumption. We never ex- 
ported a foot of it. It was strictly for local use. We felt ourselves aggrieved by being- 
taxed under the circumstances. It strifck us in this light: we thought it was better 
for the government to have this timber used to help build up thriving enterprises here 
in the wilderness than to have it lie idle. 

There is no timber culture here yet. There seems to be some difficulty in getting 
varieties that are not indigenous to flourish here, and in fact indigenous varieties do 
not seem to succeed very well. It is a question if timber culture will succeed here. 

Question. Have you any suggestions to make concerning the pasture lands? — An- 
swer. 1 have not given the pasture homestead proposition any consideration, and I 
cannot say nincli about ii wii bout reflection. These lands have been held in common. 
One hundred and sixty acres areworthh ss for- pasture purposes. lam inclined to think 
it would be advisable to create a system to allow a man to acquire land in proportion 



PUBLIC LANDS. 383 

to the amount of his stock. I think it would he hut just and right for a inah herding 
a large hand of cattle to he permitted, on the passage of such an act, to take land in 
excess of a pasture homestead, in proportion to the stock he has there, by purchase or 
lease. I think 10 cents per acre would he enough for this land. , 

Q. Have you had any experience in mining ? — A. I have had some experience. I 
think the square location would do away with a great deal of litigation, and would be 
much better than the present. Under our present system the oldest location takes the 
whole ledge. It seems to me it would be better to divide it up among a number of 
people. I think it better that the county recorders should be abolished, so far as the 
United States lands are concerned, and that the claimant should make his first riling 
right here in the office of the register and receiver. I see no reason why there should 
he any difference between mining claims and homestead and pre-emption entries. 
There is a deplorable license in the description of mining claims in the county record- 
er's office. . I think the system would be very much improved if it were put in the 
hands of district land officers. 

Q. What is the condition of the water rights in Montana? — A. The water rights in 
this country are in the most chaotic condition. I stated at the last session of the legis- 
lature that this was one of the most important questions that would come up, and 
that some system should be devised to protect the settlers. There is a sort of priority 
right here ; the man who comes and takes up the water first is supposed to have the 
first right to it, and there is no limit to it. He can take as much as he likes. The com- 
mittee to whom this matter was referred came back and reported in four days that 
there was nothing better could be done. In certain localities the water is taken up, 
"but in a great many localities a very little is yet taken up. I think about two-thirds 
of the water supply is yet common property. I think irrigation will never amount to 
much here except by companies, and I think the government ought to aid them by 
giving them grants of land. It is a system that must be incorporated. It is too great 
an undertaking for individuals. The land will not be worth the money it takes to put 
the water on it. These great rivers can be taken out by companies and made valuable, 
thus rendering the land capable of sustaining a large population. 

Most of the bench lands are the very best of soil ; and in many places the soil is of 
a very superior quality to the very summits of the mountains. I am satisfied that this 
will be a fruit country. If sheltered from the north winds, all the hardy variety of 
fruits will grow here, cherries, apples, and small fruits, such as strawberries, &c. I 
think this question should be settled at once, before any more land is occupied aud 
the population becomes any greater ; or, in other words, before there is more vested 
rights. 

Q. Have you had any mining litigation here ? — A. Comparatively little mining liti- 
gation has yet been instituted here, but that is probably owing to the wide expanse 
of our country and the few people yet in it. 

Q. Is there much complaint of the rectangular system of surveys ? — A. There is much 
complaint of the rectangular system, on account of the stakes rotting away. I believe 
it is a good system, but afte^three or four years it is difficult to find the corners, as the 
posts have disappeared. The surveys that were made in the prairie region, the stock 
rubbed the stakes out of the ground, and the mounds washed down and disappeared, so 
that there was nothing left. I think the corners should be made of stone, and I think 
there should be monuments of permanent material on every fourth township corner. 
They should be made of sufficient size to find without difficulty. Triangulation should 
he used to bridge over mountains and undesirable places. I have no practical knowl- 
edge on the subject, hut I think it would save much time and labor. 

Q. Have there been any climatic changes here ? — A. Apparently the climate is chang- 
ing. It seems to he wetter, and the seasons warmer, hut the snowfall is about the same, 
taking the average, and the supply of water has very little decreased, if any. As the 
greater portion of our rain falls in May and June, the rain comes at a season when it is 
needed for irrigation. Sometimes towards the close of the season of irrigation the 
water becomes very scarce, but at the time the crops are growing then is our greatest 
supply of water, say along the latter part of June and July. We raise all the cereals, 
without exception. The Jefferson, the Bannock, the Gallatin, the Beaver Head, the 
Bear, the Dearborn, in fact all the rivers in this country, can be taken out for irrigating 
purposes. 

I do not think the Territory is yet overstocked ; not at present within one-quarter of 
its actual capacity for stock. That is a very moderate estimate. 

I think in mineral claims a man should be compelled to pay up sometime, and that he 
should not be allowed to hold mineral claims without paying up. I think there should 
he a limit. Three years would seem to me amply sufficient time for a man to acquire 
title after location. I do not think simply a possessory title ought to continue for any 
more than that length of time. 

There is another thing I would call attention to, and that is in regard to the old placer 
mine act. That was a great injury to Montana ; it sent our population to other gold 
fields. There was a vast amount, comparatively speaking, of our placer mines that were 



384 PUBLIC LANDS. 

patented and could not be worked. They were held for cheaper labor, scientific appa- 
ratus, &c. They drove our placer mining people out of the country. There are miles of 
good placer mines that to-day would support thousands of men by mining them. Tbey 
are held by monopolies and companies. They were taken up under government patents 
but were not worke'd at all — were held for speculative purposes. That law worked a 
great disadvantage to the people of Montana. Our yield of gold fell off wonderfully. 
There is at present any number of government patents, very rich placer mines, that 
will ultimately yield much gold. Every place that was not known to be worth $3 per 
day was taken up and held for speculation. 

We have other kinds of land here — mining, pasture, and timber land. I think we 
ought to make laws that would protect these interests. The only changes that should 
be made should be those that would affect the settlers and the coming population of 
this country. 

There are some places away up on the sides of the mountains where you can grow 
fruits, but they do not mature until late. In Deer Lodge County, which is also at a high 
elevation, they have fine gardens. In my opinion the farm land that can be reclaimed 
is amply sufficient to support a dense population ; that is, after the waters have all been 
utilized and artesian wells dug. 



Testimony of Willis Ball, civil engineer, Beatrice, Nebr. 

The questions to which the following answers are given will be found on sheet 
facing page 1. 

Beatrice, Nebr., September 30, 1879. 
PuMic Land Commission, Washington, D. C. : 

I will now reply to some of the questions asked in the inclosed circular. I will con- 
sider the first ten only. 

1. Name and business as shown above. 

2. Seven years. 

3. I have acquired 160 acres of land in this State under the "soldiers' homestead act.' 7 

4. Living here I have bad good opportunities to see some of the workings of the 
United States land office in this place, and I can truly say that in my judgment the 
present system is excellent if you have good, honest, capable men to do the business. 

5. I got my patent in about tbree months from the time I made final proof. I think 
this is about the average time. With regard to contested claims, I will say that so far 
as I know the trials at the local offices are brief, and conducted impartially. The ex- 
pense depends mostly upon the contestant's lawyer's fees. I have known a man to 
spend $150 in a contest, and I have heard of some who have spent $300. There was a 
case not long since here in Gage' County in which the contestants each spent $125 be- 
sides their time. From the time the contest commenced to the time of final decision 
from Washington it took about eight months. Where there has been no contest there 
has been no delay. Of course I need not speak of the time one is required to live upon 
a claim in order to make final proof. It is better for one who wants to obtain public 
lands to go to the United States land office himself and do his own business. A home- 
stead of 160 acres costs $18. 

6. Concerning defects of our land laws I will speak of one in particular, and that is 
the act which relates to " timber culture." If I had money which I wanted to invest in 
public lands I would, or might, proceed thus : I would go to a dozeu men and say " Here, 
I want to hire you to work for me a little during the next five years. And what I want 
you to do is to go to the United States land office and each take 160 acres of land under 
the timber-culture law and I will do the breaking and plant the trees. All I want of 
you is to be on hand when the time for proving up comes. I will pay you well for 
your trouble and of course you will sell me your land at once." Now, the above is the 
way it can be and is done. 

In addition to the above I will say that the law under or by which the Indian reser- 
vation in the southern part of this county is being disposed of is very defective. Why, 
I might go down there, pick out a claim, come back to the land office and file on it, 
and return and cut and sell wood to my heart's content for the next three months. I 
will suggest no remedy. 

7. So far as I know the eastern portion of our State is excellent for agricultural and 
pastoral purposes. How it is in the western part I know but little from actual ob- 
servation. 

8. I think all the information desired under this head might be obtained from our 
State geologist. 

9. With regard to this I will say that I believe the present system of making surveys 
of public lauds is a bad system. To my certain knowledge the work in many instances 



PUBLIC LANDS. 385 

is carelessly done, and in some cases much of the work described in the field-notes of 
surveys has never been done. For my part I think the better way to do would be to 
let the government employ competent engineers by the month or year. 
10. I know of none. 
Yours truly, 

WILLIS BALL. 



Testimony of Minor W. Bruce, Knox County, Nebraska. 

The questions to which the following answers are given will be found on sheet 
facing page 1. 

1. Minor W. Bruce, Niobrara, Knox County, Nebraska ; correspondent. 

2. Nine years in county ; twelve years in State. 

3. Have acquired 160 acres under pre-emption laws. 

4. Am a member of Bruce Colony, the most successful in the State. Have taken 
great interest in the settlement of the county, and feel pretty well acquainted with 
the operation of the homestead, timber, and pre-emption laws. 

-5. From the date of proving up on pre-emption or final proof of homesteads, from 
six to eighteen months has elapsed before securing patent. 

6. The land officers should be obliged to have a reasonable time expire, say, four or 
six weeks after land that has been relinquished by the person holding it, after it has 
been returned to the office as canceled, for frequently parties sell their improvements 
to persons who are not able to secure it before it is taken by some one else. Under 
a late law, it becomes necessary to give notice through a newspaper of the intention 
to make proof, and it becomes necessary for such person to go to the place in which 
the land office is located in person, thus making a considerable expense to the home- 
steader. This expense, or a portion of it, thould be paid by the government. 

7. The conformation and physical character of Knox County, Nebraska, is quite 
rolling and hilly along the Missouri River, but as you go back into the interior it 
becomes gradually less bluffy, until it settles down to a gently undulating plain, and 
is principally agricultural. 

8. I think the government can fix the general cnaracter of the several classes of land 
by geographical divisions other than by a general rule. 

9. No views on this matter. 

10. I think the present method of disposing of the public lands cannot be improved, 
only in a few reforms of the system as suggested above. 

AGRICULTURE. 

1. In Northern Nebraska the fall of rain is usually abundant in spring, but in sum- 
mer is liable to drought. 

3. All of it can be cultivated without irrigation. 

4. An increase of crops can be had by irrigation in the summer. 

5. Irrigation never attempted in our part of State. 
S. No idea. 

7. The Missouri River, Niobrara River, Verdigris, and Bazill. 

12. Perhaps one-hundredth part. 

13. It is, in my judgment, practicable to establish homesteads on the pasturage lands. 

14. In my judgment it is unwise to put any lands in the market for private entry, 
for it retards the settlement of the country, and, if sold in large tracts, the speculators 
will ascertain, as they already have in Nebraska, that it is a poor investment, for the 
actual settlers are taxing the lands to the greatest possible extent for bridge, road, 
and school purposes. 

16. Eight or ten head of cows will support an average family. 

17. Perhaps seventy-five. 

18. The growth of grass has increased. 

19. Cattle raisers in our section do not fence their ranges, and they will flourish in 
winter on the range. 

20. No. 

21. Running water, and Missouri River and Elkhorn. 

22. Don't know. 

23. Don't know. 

24. Yes. 

25. There are none in our section. 

26. Four hundred head of sheep in our county ; 3,500 head of cattle. 

27. None. 

28. No trouble whatever. 

25 LC 



386 PUBLIC LANDS. 

TIMBER. 

1. Timber land in our county is confined to the streams entirely. 

2. Small, scrubby oak, cottonwood, elm, ash, cedar, box-elder, and ironwood. Oak 
is regarded as best, and is most all native and of very slow growth. 

3. Should dispose of timber in quantities of 40-acre lots to actual settlers, say for 
from $4 to $15 per acre. 

4. Would not classify the different kinds of forest lands. 

5. When forests are felled in our section a second growth springs up, the cottonwood 
and box-elder growing to a height of 12 feet and 15 feet in six years. 

6. Fires are usually set out by mischievous persons and Indians, are very destructive, 
usually accompanied by high winds. Our State imposes a heavy penalty for setting 
fire to the prairie. The Land Office could by a reasonable law provide for the secure 
protection of the settlements and timber, and a rule established by the Interior Depart- 
ment would be more respectfully regarded than a law of the State. 

7c There should be a law for the protection of the timber from raids by persons who 
cut it for speculative purposes, though I am of the opinion the actual settlers should 
have access to all the timber belonging to the government for actual use. 

8. It has been the custom in this county lor actual settlers to cut what timber is ne- 
cessary for home supply. 

9. The timber laws would be more efficiently executed if their administration and 
general custody were placed in the jurisdiction of the United States land offices. 

LODE CLAIMS. 

No knowledge. 

PLACER CLAIMS. 

No knowledge. 



Testimony of Uriah Bruner, attorney-at-law, West Point, Nebr. 

The questions to which the following answers are given will be found on sheet 
facing page 1. 

Answers to questions submitted by the Public Land Commission. 

1. Uriah Bruner, attorney-at-law. 

2. Twenty- three years. 

3. Yes, 160 acres unoffered land under pre-emption act September 4, 1841. 

4. Have been receiver for about six years. Land office West Point, Nebr., and 
Norfolk. 

5. On uncontested entries. Homesteads, including witnesses and their expenses, 
about $40 average. Some few made their entries say for $25, while others living at a 
great distance from office their expenses have run up to $75. Timber claims, including 
proof, exclusive of the improvements that have to be made on the land, would be about 
the same as in homesteads. Fees in pre-emption entries are considerably less. Since 
I am out of the office I understand that the applicant to homestead and timber claims 
are required to give thirty days' notice by publication of his intention to make final 
proof. This is a useless and burdensome expense, which should be d©ne away with. 
No one but the proprietor of the newspaper will be benefited by such notice. Con- 
tested claims are frequently very expensive to the contesting parties. The average 
expense of a contest is perhaps $40. Where no attorneys are employed and personal 
notice given the expense is sometimes reduced to about $15, but more frequently it 
will cost $100. 

6. The timber law as it stands has several defects, in my opinion. It requires that 
2,700 trees should be planted to each acre, and 675 shall be growing and be thrifty at 
the time of proving up (five and six years after same are set out). There should no 
more trees be required to be planted than there are required to be living and in thrifty 
condition at end of eight years. No trees that are fit for first planting will do well to 
be plan ted so close together. They will choke out one another, jnidwhilethe thriftiest and 
most vigorous will survive, it will yet be injured by those that have been killed out by 
the choking process. Trees in forest grow straight with long bodies, but they are much 
retarded in their growth by being overcrowded. It is far better to plant the proper dis- 
tance so they will not interfere with the growth of each other by overcrowding until they 
attain a sufficient size for purposes of poles and fire-wood, when 1 he thinning out process 
can be done by the farmer with profit to the forest as well as to himself. 1 have con- 
siderable experience in raising forest trees in planted groves, and my views I give here 
are' from actual observation and practical experience. I believe t hat the claimant under 
the timber law should be required to plant 40 acres for every 160, and the number of trees 



PUBLIC LANDS. 387 

required to be planted to the acre should he about 640, and the number at time of prov- 
ing up to be about 500 ; that all homesteaders and pre-emptors on prairie lands should be 
required to plant and have in growing and thrifty condition 10 acres for every 160 — 
five years after the entry of the same and before the proving of said entries for pat- 
enting. In homesteads the proof to be made at the time of final proof and in pre- 
emptions the proof to *be made five years after the date of settlement. There are now 
acres of land in Western Nebraska and Kansas that are worthless for all purposes 
except for grazing. These, under proper restrictions, could be sold on condition that 
part of the same be planted in forest trees. Here care should be taken that the same 
be not sold in too large bodies to one person or company of persons. Rather have the 
government inaugurate a system of leasing (as they used to have in Australia) at pub- 
lic auction for a term not to exceed five years at a time. Great care will have to be 
used or large cattle raisers will soon have a monopoly of all desirable grazing lands. 
In this land district (Norfolk) the lands are what is called prairie, with very little tim- 
ber here and there on the edges of the water-courses and running streams. Most of 
the lands are good, rich, farming, agricultural lands. There are yet large bodies of 
bad, sandy lands, nearly worthless at present except for grazing purposes. 

9. I consider the present system well adapted to this part of the public domain. 

10. Answered under 6. 

AGRICULTURE. 

1. We have sufficient rainfall in this part of Nebraska ; snowfall variable. So are 
the winters — about two-thirds of which are very fine, and one-third extremely cold 
and boisterous. 

2. No irrigation needed or in use here. Most rain between 10th May to 1st July ; 
different seasons variable. 

3. All except the sand streaks, which should be planted in timber to get vegetable 
mold mixed in with the sand. 

4. None. 

5. None. 

8. Crops are raised everywhere in Eastern Nebraska ; have no experience in irriga- 
tion. 

12. The sandy lands above referred to. 

13. I think that homestead, timber law, and pre-emption law should be left in force 
even in pasturage lands until it is definitely determined that no homes will be made or 
farms opened any more. Cattle monopolists will undoubtedly clamor for an abrogation 
of the land laws on the plains ; but we should proceed very cautiously in this direction. 
We should remember that this is the day for aggression by large monopolists of all 
kinds. Our government was established not with a view for enriching a few at the 
expense of the many, but rather for the purpose of affording opportunities to the toil- 
ing millions to rise with the dignity of labor to a comfortable competence for himself 
and his family. It is the government's duty to see to it that all shall be brought up 
well, be educated in the rudiments of a good, common-school education, and that this 
bringing up may be done by the pater familias without materially cramping himself, 
the question of social science is undoubtedly the most important that can engage the 
attention of statesmen, and the land question entering so largely into this question is 
perhaps the most difficult to solve ; to move with great caution must be our motto. 

18. Wild grasses decrease by pasturage ; prairie fires also injure grass lands. 

19. No. Except where the settlements are dense and the land is all occupied. No. 

20. No. 

21. Wells and creeks ; running water principally. 

TIMBER. 

1. But little, only fringing on running streams. 

2. Mostly cottonwood, some box-elder, soft maple, ash, black walnut, and white 
willow. Cotton is preferred for its early maturity, white willow next, box-elder, 
soft maple, and ash. Time of growth, from May to September. 

Very respectfully, &c, 

URIAH BRUNER. 



. Testimony of Royal Buck, Red Willow, Red Willow County, Nebraska. 

Answers to questions submitted by the Public Land Commission. 

Red Willow, Nebr., December 8, 1879. 

1. My name is Royal Buck ; residence, Red Willow, Red Willow County, Nebraska, 
and my occupation is a farmer. 

2. I have lived here nearly eight years. 



388 PUBLIC LANDS. 

3. I have a homestead under act 1862, and a timber claim under act to promote growth 
of timber, &c. 

4. I have served as register of United States land office at Nebraska City from 1861 
to 1865, and during the past two years have spent much time in looking out claims 
and locating immigrants. 

5. The expense of procuring title under homestead has been about $30 uncontested, 
and from $50 to $75 where contested. 

6. Yes ; first homestead law. The present law permits parties to make entry at the 
local land office without swearing that he is an actual resident of the tract or that he 
has made |any bona-Me improvement on the same, but when the homesteader goes 
before the county clerk of the county where the land is situated he must swear that 
"he is a resident (or that some member of his family is residing) on the land he 
applies to enter, and has made bona-fide improvement on the same." This seems to 
be an unjust discrimination ; it is also absurd. Suppose a man comes to Western 
Nebraska from Illinois to look up a homestead. His family is left at their old home; 
he comes by rail, stage, &c, finds his land, establishes its boundaries, and then, with- 
out any conveniences at hand, he must establish a residence. The truth is, he can't do 
it, but in order to secure it he throws up a few sods, calls it a residence, and makes 
the affidavit required under a mental protest and reservation — practically swearing 
falsely. My suggestion is this, that every man who enters a homestead be required 
to swear that he has performed some personal act on the land by which he proposes 
to initiate title, and that he has also made commencement of residence on the same. 
Another suggestion is that where great distance or bodily infirmity prevent personal 
attendance at district land offices applications may be made in the county where the 
land is situated, before any officer authorized to administer oaths, having a seal, same 
as timber-claim entries. Now homestead applications and affidavits can only be made 
in the counties before the county clerk. County judges and notaries are ruled out, 
and clerks monopolize the business, much to the inconvenience of settlers. 2d. As to 
timber- culture entries, I have thought if they were confined to actual residents of the 
counties where the lands are located it were better. Too many trees are required to 
be planted. The first law placed the trees too far apart ; the present law is on the 
other extreme — give us the half way. 

7. Bottom lands along streams with some timber ; soil rich sand loam, beautiful 
" divides " or uplands well adapted to both agricultural and pastoral. 

8, 9, and 10. Have no suggestions. Present laws seem well adapted to promote actual 
settlement. 

AGRICULTURE. 

1. Climate is good ; rainfall is increasing ; usually have from 5 to 12 inches of snow 
in winter, but it disappears soon after falling. 

2. Heaviest rains usually occur in April and July ; most seasons then are sufficient 
for all practical purposes of farming. When drouths occur they are usually in June 
and August. 

3, 4, 5, 6, 7, 8, 9, 10, and 11. Have no experience in irrigation. We have some streams 
which might be utilized for irrigation. 

12. Not more than one- twentieth part. 

13. Homesteads of a thousand acres might be selected in some localities which 
would be suited for stock ranges only, but these should be confined to canons and 
bluff lands when ordinary farms cannot be made. 

14. Most decidedly no. 

15. About 5 acres. This is called a first-class stock country. 

16. About 50 head. 

17. Can't state. 

18. Buffalo grass decreasing. Blue stem and other large grasses increasing. 

19. No fences ; cattle can't well be confined in winter on ranges by fences. 

20. No. 

21. Red Willow Creek, Republican River, and several smaller streams. 

22. Ten sheep. 

23. Decrease. 

24. Not well. 

25. Know of no conflicts. 

26. Sheep from 100 to 500 head, and about same of cattle. 

27. No suggestions. 

28. Yes, very much. The surveys in the eastern half of the county have been done 
badly, very badly. Many townships have no evidence that any government survey 
has ever been made. The truth is, great fraud has been perpetrated in the govern- 
ment surveys, and as a result those who settle on these lands are obliged to have them 
Burveyed. A resurvey ought to be made by the government, and the contractors who 
made the first survey ought to be prosecuted on their bonds and oaths on returns. 



PUBLIC LANDS. 389 

TIMBER. 

1. Only small belts of timber along the streams. The varieties are cottonwood, 
box-elder, ash, elm, and hackberry. 

2. The kinds of timber usually planted are cottonwood, box-elder, and ash, and cot- 
tonwood is considered the surest growth and quickest to mature. Ten years of growth 
give fine groves. 

3. Timber lands in this county are all under claim by homesteaders and pre-emptors. 
Have no suggestions to submit. Have no suggestions on remaining questions under 
this head. 

The other topics in circular not relevant to this locality, and no suggestions are sub- 
mitted. 

In closing these suggestions I desire to recur again to the subject of the public sur- 
veys. Some relief ought to be afforded the settlers in many portions- of the western 
part of the State. It is an immense burden upon new settlers to be obliged to hire a 
surveyor to run out their claims before they dare build a house, and when so sur- 
veyed there is no certainty of correctness. There ought to be a resurvey of all the land 
west of range 25 west of sixth principal meridian and south of the Platte River. 
Respectfully submitted, 

ROYAL BUCK. 



Testimony of Lewis R. Kent, lawyer and land agent, Orleans, Nebr. 

The questions to which the following answers are given, will be found on sheet 
facing page 1. 

1. Lewis H. Kent, Orleans, Nebr. ; lawyer and land agent. 

2. One and a half years in county and four years in State. 

3. I have not. 

4. By being in the land business. 

5. About $50 for uncontested and $75 for contested. 

6. Would allow the local register to put on entries, upon a relinquishment being made 
at the local land office. 

7. Agricultural and pastoral. 

8. Geographical division. 

AGRICULTURE. 

1. Climate good ; long summer. 

2. In the spring. Yes. 

3. Nearly all of it. 
5. None. 

10. Water has been all taken up under homestead and declaratory statement laws, 
only under contests of the land. 

12. About one-third. 

13. Yes. 

14. Yes, and the quantity should be limited. 

15. About two acres per head. 

16. About ten. 

18. The growth of buffalo grass has diminished and blue-joint grass increased. 

19. Thev do not fence. Yes, I think they can. 

20. Yes. 

21. Plenty. 

22. About seven. 

23. Diminished. 

24. No. 

25. The sheep raisers drive the cattle owners out. 

26. About 5,000 head of cattle and 2,000 sheep. 
28. Yes, great trouble. 

TIMBER. 

1. About one-twentieth of the land. Cottonwood timber mostly. 

2. Cottonwood and maple. 

3. Would sell it in small tracts of about 10 acres. 

4. No ; only as above. 

5. Yes. There is a second growth. 
€. Veiy great. 

7. Considerable timber is cut for fuel by homesteaders 

9. Yes, much more so. 



390 PUBLIC LANDS. 

Testimony of E. A. Keny on, farmer, Hooker, Gage County, Nebraska. 

The questions to which the following answers are given will be found on sheet 
facing page 1. 

1. R. A. Kenyon ; farmer; Hooker, Gage County, Nebraska. 

2. Ten years in county and twelve in State. 

3. I have, under pre-emption and homestead laws. 

4. In seeing lands sold to speculators. 

5. In my case I complied with the law and got my title within six months after 
proving up ; others have not gotten theirs under two years. 

6. The selling lands in larger tracts than 160 acres has worked detrimental to this 
part of the country. 

7. This county is pastoral, with plenty of good water for stock. 

9. The present system of survey is the best that could be had for this section of the 
country. 

10. The only and best way, in my view, is the present method, in giving the lands 
to actual settlers in whole. 

AGRICULTURE. 

1. The climate has changed since I have been here ; we have one-half more rain 
yearly than we did six years ago, but this has been a dry season ; snowfall is light. 

2. June and July in heavy quantities. Yes. 

3. All. 

4. None. 

5. None. 

13. Yes ; one section. 

14. Yes, it should. If it is not moneyed men will get it all, and make the rich richer 
and the poor poorer. 

15. One acre. The best I have ever seen from Minnesota to Louisiana and from Ne- 
braska to Vermont. 

16. Twenty-five. 

17. Not more than four. 

18. Increased. 

19. None. They can. 

20. They would. 

21. Springs generally. 

22. Ten. 

23. If not overpastured it has held its own. 

24. Yes. 

25. I know of none. 

26. About equal. Cattle average 100 head, sheep 400. 

27. None. 

28. None. 

TIMBER. 

1. About one-half all young timber and spreading timber is being put out every 
year. The timber is on the streams. 

2. Cottonwood, soft maple, walnut, and ash. I regard all essential. Cottonwood 
and maple have the quickest growth. 

3. In such locations as mine in ten-acre lots by lease, for the reason that it would 
give the timber to those that most need it. 

4. I would. 

5. There is a second growth, and generally faster than first. 
7. Lease, in small quantities. 



Testimony of H. W. Parker, register, and B. B. Harrington, receiver, Beatrice, Nebr. 

Beatrice, Nebr., November 3, 1879. 
Public Land Commissioner, Washington, D. C. : 

Sir : In compliance with your request we give you our " views of the present land 
laws and the administration thereof." 

1. The pre-emption act of 1841 should be repealed. The only use made of it, as far 
as our observation goes, is to prolong the time of keeping the land from taxation. A 
party will file on unoffered land and hold it thirty-three months, and then commute 



PUBLIC LANDS. 391 

his filing to a homestead entry and hold it for seven years longer before perfecting his 
title. A homestead claimant can commute his claim to a cash entry after six months' 
residence, and that is as soon as a pre-emption claimant can get title. 

2. The act of March 3, 1879, requiring homestead and pre-emption claimants to ad- 
vertise thirty days before proving up, should be repealed. In our opinion it is a use- 
less act, doing no one any good except the printer, but causing the claimant useless 
expense and trouble. 

3. The homestead law should be so amended that when a homestead or timber cult- 
ure claimant relinquishes his entry in writing, the land shall be open to entry without 
further action by the General Land Office, the local officers making report at the end 
of each month the cancellations made during the month, and transmitting to General 
Land Office the written relinquishments. 

4. The act of March 3, 1879, "granting additional rights to homestead settlers," 
should be amended. It discriminates against the soldier. A soldier who has taken 
less than 160 acres cannot make an entry under this act, while a citizen who has made 
an entry of 80 acres, paying $9 for the entry, can make an additional entry of 80 acres 
without paying anything, thus giving him 160 acres for $9, and the soldier who took 
160 adjoining him had to pay $18. The citizen should at least pay as much for his 160 
acres as the soldier has to pay. If any difference is made it should be in favor of the 
soldier. All acts for the disposal of the public lands, except this act, allow the regis- 
ter and receiver a commission on the sale or disposal of the land according to price of 
same. Why should they be required to do the work under this act for nothing ? If 
the government wants to give the land away, all right, but it should provide for pay- 
ing its agents for doing the work necessary. S. No. 490, providing that the fees allowed 
registers and receivers for testimony, &c, shall not be considered or taken into account 
in determining the maximum of compensation of said officers, should become a law? 
or else H. R. 5493, to authorize the Secretary of the Interior to make allowance for 
rent of United States laud offices, should become a law, and the fees heretofore ac- 
counted for by the recorder and receiver for taking testimony, and covered into the 
Treasury of the United States, should be returned to them, or the rent paid by them 
refunded. Rent of offices and fuel should be paid by the government, or allow the 
recorder and receiver the rents for taking testimony, making abstracts, &c. 

5. The timber- culture act should remain as it is. In our opinion it cannot be im- 
proved by amendment. 

6. The grazing lands in the western portion of this State, which are unfit for grain 
raising, and only fit for grazing, should be offered for sale, and all not sold at time of 
offering should afterward be subject to private entry. 

7. The system of public land surveys should be changed. It seems impossible to get 
a good job done under the present system. 

Respectfully, 

H. W. PARKER, 

Regtstei-. 
R. B. HARRINGTON, 

Receiver. 



Testimony of Moses Stocking, farmer, Wahoo, Saunders County, Nebraska. 

The questions to which the following answers are given will be found on sheet 
facing page 1. 

To the Public Land Commission, Washington, D. C. : 

Sirs : A press of work, compelling much absence from my home since the receipt of 
your circular, is the cause of delay in attending to its many points, points requiring 
extensive and. varied knowledge to enable one to approximate a satisfactory answer. 
But to the " questions." 

1. My name is Moses Stocking ; residence, Wahoo, county of Saunders, Nebraska ; 
occupation, farming and stock raising. 

2. Have lived in this county fourteen years, and in the State twenty- three years, and 
have had some acquaintance with the country since May, 1853. 

3. Yes ; secured a pre-emption right in Cass County in 1857, and a homestead in this 
county in 1872, and under the laws then in force. 

4. That of my neighbors who have acquired lands near me. 

5. Under the pre-emption laws the time has varied from one month to twelve months 
in non-contested cases. In contested cases the time is often much greater, occasionally 
running into the second or third year, and sometimes attended with much expense to 
the parties. The decision of homestead contests are equally dilatory. A case is now 
pending in Butler County — that of Albert Long for the west one-half of east one- half 
section 20, township 15, range 4, sixth principal meridian — which has been pending 
about eighteen months. Parties have made several trips to Lincoln, fifty miles dit- 



392 PUBLIC LANDS. 

tant, with witnesses. No notice of a decision had reached Long on the 10th instant. 
He still remains upon the land, which is about two-thirds improved ; is justly entitled 
to it ; is very poor and unable to litigate. The case is a hard one. 

6. The land laws as they now stand, so far as I understand them, are far more per- 
fect in the spirit and letter than is the practice of the officers who are intrusted with 
their administration. Land attorneys are a nuisance to the honest poor man, and 
should never be allowed inside a government land office. All that is required is capable 
and honest land officers. 

7. There is no longer anf government land in this county ; all sold, as is a large por- 
tion of the railroad and school lands. The topography varies from level alluvial bot- 
tom to high rolling land, a portion being smooth table and another portion smooth 
rolling land. All is agricultural timber, very limited. The topography of the State, 
with the exception of some sand-hills, is quite similar to that of this county. The 
entire State originally comprised one grand pasture-field. Twenty-six years ago prob- 
ably not more than one-half of the area, and that in the eastern part, was agricultu- 
ral. To-day about seven-tenths is -fairly such, due to increased moisture. The bal- 
ance is still only pastoral, and of these three-tenths the next quarter century will no 
doubt have redeemed all, excepting perhaps the higher table lands in the west end 
of the State. 

8. Cannot find the act referred to. The character of Nebraska lands already is 
pretty well determined, being nearly all sufficiently fertile for agricultural purposes, 
moisture alone being needed west of North Platte, and even there the bottomlands 
should now be classed as agricultural. The practical " rain belt " has moved west- 
ward about 100 miles during the last twenty years. 

AGRICULTURAL. 

1. The climate of Nebraska is mild for the latitude, and subject to sudden changes, 
but salubrious and healthy. Mean annual temperature for a series of eight years, ac- 
cording to two records, 47.57° ; average snow and rainfall for same time, three records, 
32.95 inches ; coldest days, January 7, 1864, and February 15, 1866, 32° ; rainfall of 
winter months, 3.71 inches ; of March, October, and November, 4.9 inches ; other 
months, 20.86 inches. 

2. Eainf all, as shown in preceding answers, occurs mainly during the crop months 
and is all-sufficient — the last three seasons too much. 

3. Ninety-nine per cent. 

12. About 10 per cent, is better adapted to pasturage than to plowing, owing to 
roughness. 

13. Yes ; second limit to 640 acres, or even less. 

14. No. For then the land would be taken by capitalists in large tracts for stock 
pusposes, and thus keep settlers out. What the country wants is homesteaders and 
families. The country is desirable and sure to settle in time if held free for families. 
Allow the stoekmen to use it until wanted by actual settlers, but never allow them to 
gobble the fee of the soil. 

15. About three acres, but were the soiling system practiced two acres would do it 
better, and make four times the manure. 

This section compares favorably with others. 

16. There should be at least one bovine to each person in a family or nation. Ne- 
braska has about one-twelfth less cattle than people. 

17. Fifteen and sixty-seven hundredths to the square mile. 

18. Increased — fully doubled in twenty years. 

19. No. Only use a corral. It would not be safe to confine cattle in winter unless 
water, grass, and shelter were abundant within the inclosure. 

20. Think so, as thin scrubs and low-grade bulls would be castrated, and encourage 
the using of good blood as breeders and sires. 

21. Springs, creeks, rivers, and wells. 

22. About ten of merino and six of cotswold. 

23. Increased where not overstocked* 

24. Yes ; but it is not quite safe for the sheep. 

26. Four thousand one hundred and twenty-five sheep, and 11,850 cattle. Sheep are 
mostly herded in flocks of 500 to 700, and cattle in herds of 50 to 150 head. Cows are 
frequently lariated near the dwelling-house. 

27. I would encourage the completion of both the North Pacific and the South 
Pacific Railroads by moderate and reasonable land grants, and would limit the prices 
at which the lands should be sold by the companies. Had previous grants been thus 
limited all would have been well. Corporations should not be allowed to charge the 
settler a higher price than the government charges him for lands of similar quality 
and location. The completion at an early day of those roads has become a necessity 
to the country. They are needed to facilitate communication between distant parts 
©f our broad laud, and to promote the settlement thereof ; and to move the crops, 



PUBLIC LANDS. 393 

■which must soon be grown thereon. And again, they are greatly needed to facilitate 
the movement of troops, stores, and ordnance for the protection of the frontier settler 
against Indian raids, and to forever stop Indian wars. The Indian policy of our gov- 
ernment is the most stupendous folly on earth — a farce which out-Herods the devil's 
glee at the sufferings of Christ upon the cross — a fraud of the first magnitude upon 
both races. Ask that policy where is Meeker ? Where is the widow Decker's daugh- 
ter and her little babe f Where the lady whose scalp with jetty flowing hair attached 
was found in the Sand Creek camp at the close of Colonel Chivington's fight ? Where 
the victims of the Custer " holocaust ?" Where is General Canby; and where, oh 
where, are th6 hecatombs of Minnesota's slain ? 

28. For an arable country like Nebraska, no better system of surveying than the 
present rectangular one can be devised. But the work should be well done, which 
was not the case in this county. Excepting upon township and range lines there 
probably is not one section which has straight sides Corners are from several feet to 
as many rods out of line. This cause coupled with the fact that the Pawnees pulled 
up and burned stakes, that the wild animals and the elements combined to tear and 
obliterate the mounds, renders it difficult often to find corners., 

TIMBER. 

1. Under the Indian regime owing to the devastating annual fires, nearly all tim- 
ber was confined to the moist margins of streams, to the breaks and canons of the 
river bluffs, where fires could not penetrate, and was usually of a short and scrubby 
character. Civilization has changed all this, and now trees grow most luxuriantly 
wherever planted and cared for. Originally about 2 per cent, of the area of this 
county might have been classed as timbered. The varieties were three kinds of oak, 
two of elm, two of hickory, black walnut, green ash, hackberry, lind, red and box 
maple, ironwood, boxwood, mulberry, white and yellow cottonwood, black cherry, 
and many varieties of shrubs. 

2. Cottonwood, box and red maple, green ash, black walnut, black and honey locust, 
sugar maple, white walnut, chestnut, burr and white oak. Of evergreens, arbor vitas 
red cedar, pines, firs, spruces, and larch. For ease of planting, rapidity of growth, and 
durability, the black locust would bear the palm were it not for the borer. Black walnut 
and green ash promise to be the most useful for mechanical purposes, and are fast 
growers. Box-maple is esteemed for shade, for wind-breaks, fuel, and sugar. 

3. By sale in small parcels or lots to actual settlers. Gauge the size of the lots by 
the quantity of timber thereon, and grade the price by the quantity and character of 
the timber, and limit the purchase to one tract or lot. Five acres of good timber is 
enough for one family. If the timber is poor and sparse enlarge the area under a 
lease, the timber will be removed and land abandoned. Under private ownership the 
timber will be closely watched and guarded. Sell to actual settlers only, and on their 
oath as to settlement, thus barring all speculators. 

4. Yes ; classify and grade tracts as to price and quality as above stated. 

5. Forests are not wholly felled here. The dead trees and those useful in the arts 
are taken out, affording more room and sunshine for the undergrowth, causing young 
trees to grow with increased vigor, but the varieties continue about the same. Soon 
there is an evident improvement in the character of the young trees — they becoming 
rapidly taller, and losing the shrubby appearance of the older growth. 

6. Prairie or forest fires usually have their origin in sheer carelessness or in criminal 
wantonness on the part of settlers, hunters, and emigrants, the last being curious to 
see a big fire. In extent these fires often sweep over hundreds of square miles of coun- 
try and are very destructive in their effects, not only to personal property among the 
settlements but to all forest growth, and occasionally to life ; kill the grasses and dam- 
age the soil ; increase the bleakness of the climate ; destroy the insectiverous birds so 
useful to the agriculturist, and deprive the earth of its natural and much-needed winter 
covering, and all without one redeeming benefit. The prevention of such fires is a diffi- 
cult task. The ordinary fire-guard is of little use in a strong wind. Ordinary roads and 
creeks are easily jumped. A system of fire-guards of sufficient breadth to insure 
safety would be a heavy burden upon the people. Owing to the difficulty of proving 
offenses, punishment by fine seems to have but little effect. Imprisonment no doubt 
would prove more effective. Let a portion of each fine revert to the informer or pros- 
ecuting witness, and it would do much toward detecting offenses. A too stringent law, 
bordering upon severity, would be non-effective, as the people would not execute it. 

7. During the building of the Overland Telegaph Line and the Union Pacific Rail- 
road a wholesale slaughter of public timber along the line of the Platte River was 
carried on. The best grove in this county, opposite the town of Fremont, was then 
destroyed, tree trunks Being used for ties and the tops left to rot. This county then 
had no settlers to prevent it. Where timber was cut upon the north side of the Platte 
usually there was not such wastfe, for the tree-tops were cut into cord- wood and sold to 
the company to run their engines. The use of the public timber for mineral, building, 



394 PUBLIC LANDS. 

agricultural, and road purposes, or bridging, is indispensable to the carrying on of those 
branches of business. Therefore the sooner the government puts the timbered lands 
upon the market in small parcels, and limited, the less of the timber will be plun- 
dered. The average citizen would much rather buy at a fair price than to steal. 

8. The party who fells a tree I believe usually claims ownership. But his neighbor 
thinks it a small crime to steal from a thief. ' 

9. As they have the selling of all lands, their facilities for knowing the character of 
the land in their respective districts, and for obtaining information in regard to depre- 
dations are good, therefore they should be efficient detectives and ready prosecutors. 
But efficiency in this class of duties will require a very different class of men from 
those who sometimes get into land offices. 

The foregoing has been very hastily written, and, being compelled to leave in the 
morning upon a business trip of several days, have no time to extend remarks or re- 
vise the matter thereof. 

Eespectfully submitted. 



Testimony of E. F. Test, claim agent Union Pacific Railroad, Omaha, Nebr. 

Freight Auditor's Office, 

Omaha, Nebr., November 25, 1879. 

1. E. F. Test, Omaha, Nebr., claim agent Union Pacific Railroad. 

2. Since 1868. 

6. Yes. They should be distributed in larger quantities, and proof of settlement 
made the basis of ownership. A case in point is the Pawnee reservation, now Nance 
County, in this State, and the Society of the Boston Aid to Land Ownership. The wealth 
of the society represented $15,000,000. The society wanted to buy it in the interest of 
the workingmen, making proof of settlement the basis of ownership, starting towns, 
farms, and advancing the means to cultivate and improve the land. The present laws 
prevented, and the reservation is still largely unsettled. One of the land grant rail- 
roads has been pursuing this policy through other parties in Boone and Greeley Coun- 
ties, and the said counties, one of them at least (Boone) has more than doubled its 
population in two years. 

27. Encourage our churches and charitable institutions to quit pauperizing our poor 
people in the large cities and elsewhere by doling out food and clothing to able-bod- 
ied men and women, and urge them to move out on the public lands. Sufficiently large 
tracts might be set aside for such purposes and the churches and charitable institu- 
tions have their superintendents in charge to locate the poor people on the homes of 
their own, advancing the means necessary to start them, payable at stated times, and 
forfeiture to be the penalty for abandonment of their claims. In other words, let the 
government furnish the land, proof of settlement being the right fco ownership, and the 
churches and the institutions of charity the money to settle and improve them, and 
give the poor people of our large cities, and elsewhere, the chance to ouild up homes 
for themselves and. their children. It cannot be disputed that every new institution of 
charity brings in an increased list of paupers. Pauperism to crime is a natural step, 
and then government is compelled to support many of these people in our prisous. It 
is cheaper to make them good citizens and producers. The churches have had much 
to do with this pauperization in the past through mistaken efforts at charity. Colonel 
Robert Ingersoll says : " It has reduced Italy to a hand-organ." Will it do so for the 
United States ? This idea I do not consider impracticable. It has been agitated by 
myself and others in this State for a number of years. The Roman Catholic Church 
has already adopted it and is meeting with success. The Methodist Episcopal Church 
might also adopt it to advantage, as they raised $5,500,000 for educational and mission- 
ary purposes in the centennary of its existence. Was it better than giving homes to 
our poor people ? 

I respectfully offer these suggestions to the honorable Commission for what they are 
worth. 

E. F. TEST. 



Testimony of C. H. Walker, real-estate agent, Bloomington, Nebr. 

Referring to the circular inclosed to me from the Department of the Interior, I have 
to say : 

1. My name is C. H. Walker. My residence is Bloomington, Nebr. I am now en- 
gaged in real estate. I was register of this laud office from 1872 to 1875. 

2. I have lived in this State since 1862. 



PUBLIC LANDS. 395 

3. I have acquired a quarter section of land under the homestead, also 12 quarters 
with agricultural scrip. 

4. As register of ; the United States land office I had a pretty good opportunity to 
learn the practical workings of the public-land laws. 

5. An intelligent answer to your fifth question involves so many contingencies it is 
very difficult to answer it intelligently. Sometimes returns come back from the depart- 
ment in reasonable time, but in other instances they drag. In contested cases much 
depends upon the attorneys or the complications that surround the case. 

6. In the timber-culture act, the State horticultural society of this State asked Con- 
gress, by resolution at their meeting of 1878, to set apart one-fourth of every section 
for the cultivation of timber of those lands that are naturally devoid of timber. This 
recommendation was made by a class of men that give these matters much thought, 
and who have watched the operations of the law. This country needs more timber, 
and if one quarter of each section was withdrawn for all other purposes, in the end 
there would be a forest on every section. Again, I believe it would be to the advan- 
tage of every man taking a homestead if he was required to plant and cultivate a cer- 
tain amount of timber, if the homestead was devoid of timber. The country wants 
more timber to assist in modifying the climate of the prairies, and there has been much 
talk and many plans proposed whereby its growth would be encourged. I believe, and 
I also express the conviction of many that I have talked with, that the government 
should require more in this direction. 

7. In answer to question 7, an experience on the frontier for sixteen years has taught 
me that the country is undergoing a radical change in climate, and that what a few years 
ago — I mean seven or eight years ago — were classed as pastoral lands are now regarded 
as the best agricultural lands. By referring to the maps of the Union Pacific Railroad 
of 1870 to 1872, it will be observed that the entire Republican Valley in Nebraska was 
classed by them as pastoral lands, and yet within the last four years this county (Frank- 
lin) has taken the champion prize at the State fair of Nebraska offered for the largest 
and finest display of farm products in the State. My own opinion is that if let alone 
this question will settle itself, and that by experience is the only way it can be settled . 
I believe in a very short time it will all be agricultural lands, and that it should be 
held as such ; that it would be a great calamity to the country if there was any change 
in the manner of disposing of the public lands, so as to build up a landed cattle aris- 
tocracy. Let the matter settle itself. 

In answer, severally, to your questions 8, 9, and 10, 1 do not see how the public can 
be much better protected nor how the homeless can receive greater encouragement than 
under the present law. I can see how it would be to the advantage of men of great 
capital to be allowed to purchase large tracts to be held for their own purposes of 
grazing. They have the use of it now, and when disposed of it should be for the good 
of a greater number. As before stated, the present system of disposing of the public 
lands is good enough, and I do not see how it can be bettered by a radical change. I 
speak only for Nebraska. 

C. H. WALKER. 



Testimony of TV. H. Beatty, chief-justice of Nevada, Carson City, Nev. 

Carson, Nev., November 21, 1879. 

Gentlemen: Having received a copy of your circular requesting information in 
regard to the subjects to be reported upon by you, I would state that I have had 
no experience and but limited means of observing the practical workings of any 
portion of the public-land laws except those which relate to the location of mining 
claims, and more especially lode claims. I would therefore confine myself to the 
questions under that subhead : 

First. In regard to my experience of mining and mining litigation, I have been a 
resident of Nevada for nearly seventeen and of the Pacific coast twenty-seven years, 
during most of which time I have been more or less conversant with the operation 
of miners' rules and customs! From 1864 to 1875 I was judge of the districts embrac- 
ing Lander and White Pine Counties. Each of those counties contained numerous 
mining districts, with varying rules and customs, and in each a great number of 
mining cases were litigated during my term of office. I also presided, by special ap- 
pointment or invitation, at the trial of several of the most important mining cases 
in Eurekr and Pioche, and have thus had occasion to decide over and over again 
most of the questions connected with the location of lode claims. I have also heard 
the testimony of great numbers of practical miners of every grade of intelligence, 
and of many of the most noted professional experts and scientific theorists, as to the 
formation and characteristics of veins and other mineral deposits where the matter at 
issue was a question of identity or continuity of veins or lodes. In hearing applica- 



396 PUBLIC LANDS. 

tions for injunctions and in trying causes which were submitted for decision by the 
court without the intervention of a jury, I have frequently been called upon to make 
minute examinations, in company with experts, of the surface and underground de- 
velopments upon every variety of mineral deposits and in all sorts of rock formations 
that are found in Eastern Nevada. Since January, 1875, as a member of the supreme 
court of Nevada, I have had occasion to review several cases involving a construc- 
tion of the act of Congress of May 10, 1872, and to consider particularly the effect of 
that provision of the law (Revised Statutes, section 2324) which accords to the miners 
of the respective districts permission to make local regulations governing the loca- 
tion, &c, of claims. 

Second. In regard to the defects of the law. The principal, the vital defect in the 
existing law is this permission to make local rules. There are, I have reason to be- 
lieve, other important defects in the law, but as to most of these there are more com- 
petent judges, and I leave it to them to point out the evil and suggest a remedy. But 
as to the practical workings of the local rules and customs of miners, when allowed 
the force of law, I have very decided opinions, which I feel that my means of knowl- 
edge justify me in stating with some confidence in their correctness. I believe that 
the whole subject of mining locations is an extremely simple one, which may easily, 
and certainly therefore ought to, be regulated by one general law, the terms and 
existence of which shall be established by public and authentic records, and not 
left to be proved in every case by the oral testimony of witnesses, or by writings con- 
tained in loose papers or memorandum-books, such as are often dignified by the name 
of "mining records." I am convinced, moreover, that the tainting of every mining 
title in the land at its very inception with the uncertainty which results from the 
actual or possible existence of rules affecting its validity, perfectly authentic evidence 
of which is nowhere to be found, is a stupendous evil. Experience has demonstrated 
that such an uncertain state of the law is a prolific source of litigation, and no expe- 
rience is required to convince any man of ordinary intelligence that it must have the 
effect of depreciating the value of all unpatented claims by deterring the more pru- 
dent class of capitalists from investing in them. That the subject is simple enough 
to be embraced in one general law is proved by the fact that the laws of the various 
districts, although differing in details, are in substance identical, and are substantially 
contained in the existing acts of Congress. 

When placer-mining began in California there was no law regulating the size of claims 
or the manner of holding and working them, and local regulations by the miners them- 
selves became a necessity. They were adopted, not because the subject was too com- 
plicated or difficult for general regulation, but because they were needed at once as the 
sole refuge from anarchy. The first and most important matter to be regulated was 
the size of claims, and the earliest miners' rules contained little else than a limitation 
of the maximum amount of mining ground that one miner might hold. That being 
determined, he was left to take possession of his claim and work it as he pleased. It 
thus appears that the location of a mining claim was nothing more nor less than the 
taking into actual possession a limited quantity of mining ground, and this was accom- 
plished by simply marking its boundaries and going to work inside of them. But in 
taking possession of their claims miners sometimes failed to mark their boundaries aa 
distinct or to do as much work on them as later comers, desirous of securing claims for 
themselves, thought essential to an actual possession. Hence arose disputes and vio- 
lent conflicts. The next and the final step in the development of miners' law accord- 
ingly was the regulation of the mode of marking the boundaries or otherwise desig- 
nating the locality and extent of claims and the quantum of work that must be done to 
hold tHiem. As a fence around the claim was utterly useless, four stakes at the corners 
or two stakes at the ends of the river boundary of a placer claim were usually allowed 
to be a sufficient marking of its extent ; but, in this connection, a written notice, 
descriptive of the claim and containing tbe name of the owner, was sometimes required 
to be posted on the ground and recorded by the district recorder. Then, as it was fre- 
quently impossible to continue work upon a claim on account of scarcity or superabun- 
dance of water, and as miners were frequently driven from the vicinity of their claims 
by the severity of the winter season, the rules went on to prescribe the minimum number 
of days' work pejr annum by which a claim could be kept good, or the maximum of time 
during which the miner might absent himself from his claim without being deemed to 
have forfeited or abandoned it. In rare and exceptional instances miners may have 
attempted to extend their regulations to other matters thai) those mentioned, but I risk 
nothing in saying that the above statement embraces the essence of all the miners' law 
of the Pacific coast relating to placer claims. After these regulations had been some 
time in force came the discovery of veins or lodes of gold-bearing rock in place, and 
to them the law of the placers was adapted with the least possible change. 

First. The size of claims was regulated by allowing so many feet along the vein. 

Second. The mode of making out or designating the claim was prescribed ; and 

Third. The amount of work necessary to hold it. 

The principal modification of the placer-mining law as adapted to lode claims was 



PUBLIC LANDS. 397 

upon the second point. The placers were located as surface claims and were best 
marked by stakes at the corners ; notice and record, when required, being deemed of 
minor importance. In lode claims these conditions were reversed. The exact course or 
strike of a lode was seldom ascertainable from the croppings at the point of discovery ; 
and as the claim was of so much of the lode in whatever direction it might be found 
to run, with a strip of the adjacent surface, taken for convenience in working the lode 
and as a mere incident or appurtenant thereto, it was found to be impracticable to 
mark the claim by stakes on the surface, and hence the notice and record came to play 
a more important part in designating the claim. They came in fact to be all-important, 
locations of lode claims being commonly made by posting a notice in reasonable prox- 
imity to the point at which the lode was discovered or exposed, stating that the under- 
signed claimed so many feet of the vein extending so far and in such direction or di- 
rections from the discovery point, together with the amount of adjacent surface ground 
allowed by the rules of the district. This notice so posted had the effect under the 
rules of holding the ground described a certain length of time, commonly ten days, 
within which time it was necessary to have the notice recorded in the district records 
in order to keep the claim good. This was all that was required under the head of 
marking or designating the locality and extent of the claim, and it was thereafter held 
by simply doing the prescribed amount of work. 

This was the sum total of the California miners' law, and it has never been mate- 
rially altered or added to in Nevada, nor, so far as I am advised, in any of the other 
mining communities of the country. By reference to sections 2319 to 2324, inclusive, 
of the Revised Statutes it will be seen that it is all embraced in the act of May 10, 
1872, which i3 distinct and specific in its provisions as to the size of claims, the mark- 
ing of claims, and the working of claims. What room, then, is left for any local regu- 
lations upon the only points that the miners have, ever assumed to regulate ? Just 
this : The miners may — 

First. Restrict themselves to smaller claims than the act of Congress allows. 

Second. Require claims to be more thoroughly marked than would be absolutely 
necessary to satisfy the terms of the act. 

Third. Require more work than the law requires. 

Fourth. Provide for the election of a recorder and the recording of claims. 

As to the first three points it may be safely assumed that no such regulations will 
be adopted in any district hereafter organized. Mining districts are organized by 
those who discover valuable ore bodies outside of the limits of existing districts, and 
these first comers will be sure to take all the law allows them to take, and will do 
nothing on their part to increase the difficulty of holding what they have got. Later 
comers, not being able to deprive their predecessors of rights already vested, will find 
their advantage in claiming any new discoveries on terms as liberal as others have 
enjoyed, and it will inevitably happen that the privileges of the law will be in no 
wise abridged. Permission to abridge them is therefore wholly superfluous. 

In some of the older organized districts the local rules do restrict the size of claims: 
but in no case within my knowledge do they exact as much as the statute in regard to 
marking and working claims. Under the regulations restricting the size of claims in 
these old districts rights have vested which ought to be protected ; but in amending 
the law, with a view to its prospective operation in old as well as new districts, noth- 
ing is to be gained by permitting miners any longer to regulate either the size of claims 
or the mode of marking them or the amount of work to be done on them. The only 
effect of such permission is to make the terms of the law upon these important points 
everlastingly uncertain, without the least prospect of its ever being improved. 

The fourth pointy at present left open to regulation by the miners remains to be 
noticed. All the district rules with which I am acquainted provide for mining re- 
corders and the recording of claims ; but under existing legislation such rules are worse 
than useless. The statute, it will be observed, does not make any notice or record 
obligatory or define their effect. If the miners themselves made no regulation on the 
subject, claims would be located by simple compliance with the terms of the statute, 
which contains in itself ample provision for everything essential to a location : i. e., 
size of claim and marking and working. Under the statute the vein is located by 
means of a surface claim, which not only can be but must be marked on the ground. 
When this is done all that the notice and record were ever intended or expected to 
accomplish is effected in a manner far more satisfactory and complete. In place of a 
very imperfect and. often misleading description of the claim, there is a plain and un- 
ambiguous notice ^o the world of its exact position and extent. No reason exists, 
therefore, for retaining in the law a provision under which it may be made obligatory, 
by local regulations, to post and record a notice in addition to the marking of the 
ground. The monuments on the ground do well and completely what the notice and 
record do only imperfectly and in part. 

It may be asked why, if this is so, do the miners, who ought to understand their own 
business, persist in requiring a notice and record. The answer is, that marking loca- 
tions by such means has with a majority of miners become an inveterate habit ; and 



398 PUBLIC LANDS. 

the custom, like many other customs, outlives the causes which called it into exist- 
ence. For twenty years — from 1852 to 1872 — lode claims were located without refer- 
ence to surface lines, and, as above explained, their locality and extent could only be 
indicated by means of a notice. Notice and record were therefore an essential part of 
the system. Now, however, since the law has applied the system of surface locations 
to lode claims, they have ceased to be of any importance as independent and substantial 
requirements. But the miners have generally failed to perceive that there has been 
any radical change in the sytem of making locations. They cannot divest themselves 
of the notion that the surface is still a mere incident to the vein, and that they must 
hold by means of their notice fifteen hundred feet of the vein, wherever it is found to 
run, notwithstanding their surface lines, as marked on the ground, may not include so 
much. 

This ignorance of the change effected by the act of Congress, and the force of habit, 
are sufficient to account for the retention by the miners of the old regulations provid- 
ing for the recording of claims ; but there is an additional reason which has much to 
do with it'. When a new mineral discovery is made a district is at once organized by 
the half dozen or so miners who happen to be first on the ground. They generally 
take a sanguine view of the value of their discovery ; they anticipate an excitement 
and a rush of new locators ; if rules are made providing for the record of claims and 
a liberal compensation to the recorder, there will be a good office for one of their num- 
ber ; and it seldom happens that there is not some man among them who has influence 
enough to secure the office and the adoption of rules which make it worth having. 

It thus appears, if the foregoing statements are correct, that upon three out of four 
points subject to local regulation by the miners they make no use of their privilege, 
and that the regulations which they do make on the fourth point, having no reason to 
support them, are simply useless and vexatious. If this conclusion is well founded 
my first proposition is established : that the whole subject of lode locations is so sim- 
ple that it not only may be, but actually is, fully regulated by act of Congress. That 
the right of local regulation ought to be taken away, if it is of no practical value, is a 
plainer proposition than the first. The interest of the public would be subserved by 
cutting off a source of endless litigation, and the mining communities would be espe- 
cially benefited by the enhanced value of mining property. 

The magnitude of the evil resulting from the uncertainty of mining titles will, 
perhaps, be appreciated when I say that after a residence of seventeen years in the 
State of Nevada, with the best opportunities for observing, I cannot at this moment 
recall a single instance in which the owners of really valuable mining ground have 
escaped expensive litigation, except by paying a heavy blackmail. The statute, it is 
true, has swept out of existence the most prolific source of vexation and expense in 
making the owner of a valid location secure within his surface hues. Before the stat- 
ute the only means of showing that a trespasser was within the limits of your claim 
was by establishing the identity or continuity of the vein between the point of loca- 
tion and the point where the trespasser was at work. The owner had not only to 
bring witnesses to prove the law of his title and the facts of his title to a claim, but 
was compeUed to incur ruinous expense in making surface and underground tracings 
upon the vein and in employing practical and theoretical experts to prove that his claim 
actually included the part of the vein from which the ore was being taken away. The 
act of ±872 has, as above stated, done away with this evil to a great extent by making 
the owner of a claim secure of everything within his surface lines, except such ore- 
bodies as can be followed on their dip from a valid location made outside of his lines ; 
and as to a claim of this sort the burden of proof is transferred to the shoulders of 
the person who, in following the downward course of his ledge, enters the land of an- 
other. 

But another evil remains. In the nature of things there must always exist the ne- 
cessity in the assertion of any mining title of proving compliance with the law pre- 
scribing the conditions upon which it may be acquired ; but there is no necessity for 
leaving the terms and existance of the law itself to be the subject of proof by evi- 
dence, the best of which is always open to dispute. 

As long as there are local regulations anywhere, and as long as there may be local 
regulations everywhere affecting the validity of mining titles, no man can ever know 
the law of his title until the end of a trial i i which it is involved. 

In districts where the rules are in writiug, where they have been some time in force 
and generally recognized and respected, the law may be tolerably wellsettled. But there 
is often a question whether die rules have been regularly adopted or generally recog- 
nized by the minersof a district. There may he two rival codes, each claiming author- 
ity and each supported by numerous adherents ; evidence may be offered of the repeal 
or alteration of rules, and this may be rebutted by evidence that the meeting which 
undertook to effect the repeal was' irregularly convened or was secretly conducted in 
some out-of-the-way corner, or was controlled by unqualified persons : customs of uni- 
versal acceptance may be proved which are at variance with the written rules; the 
boundaries of districts may conflict, and within the lines of conflict it may be i nap 08 si- 



PUBLIC LANDS. 399 

ble to determine which of two codes of rules is in force ; there may be an attempt to 
create a new district within the limits of an old one ; a district may be deserted for a 
time and its records lost or destroyed ; and then a new set of locators may reorganize 
it and relocate the claims. This does not exhaust the list of instances within my own 
knowledge in which it has been a question of fact tor a jury to determine what the 
law was in a particular district. Other instances might be cited, but I think enough 
has been said to prove that local regulations being of no use ought to be abolished. 

Third. I am not sufficiently informed as to the effects of the practice referred to in 
this question to give a reliable answer. 

Fourth. A vein or lode is contained in a fissure of the country rock. The strike or 
course of a vein is determined by a horrizontal line drawn between its extremities at 
that depth at which it attains its greatest longitudinal extent. The dip of a vein 
(its course downward, Eev. Stat., '§ 2322) is at right angles to its strike, or in 
other words if a vein is cut by a vertical plane at right angles to its course, the line of 
section will be the line of its dip. The top or apex of any part of a vein is found by 
following the line of its dip up to the highest point at which vein matter exists in the 
fissure. According to this definition the top or apex of a vein is the highest part of the 
vein along its entire course. If the vein is supposed to be divided into sections by 
vertical planes at right angles to its strike, the top or apex of each section is the high- 
est part of the vein between the planes that bound that section, but if the dividing 
planes are not vertical, or not at right angles to a vein which departs at all from a 
perpendicular in its downward course, then the highest part of the vein between such 
planes will not be the top or apex of the section which they include. The strike or 
course of a vein can never be exactly determined until it has been explored to its 
greatest extent, but a comparatively slight development near the surface will gener- 
ally show its course with sufficient accuracy for the purposes of a location. The dip 
having an exact mathematical relation to the course of a vein is of course undeter- 
mined until the strike is determined, but practically the line of dip is closely approx- 
imated by taking the steepest (the nearest a vertical) line by which a vein can be 
followed downward. 

The top or apex of a vein is usually the first thing discovered. Sometimes a blind 
lode, so called, is encountered in driving a tunnel or sinking a vertical shaft, and then 
of course the top or apex cannot often be found except by tracing it towards the sur- 
face by means of an incline. 

Of course there are irregular mineral deposits, departing widely in their character- 
istics from the typical or ideal vein which seems to have been in the mind of the 
framer of the act of 1872. To such deposits the foregoing definitions will not apply, 
and in my opinion great difficulty will be experienced in any attempt to apply the 
existing law to them. I believe however that instances of such formations are com- 
paratively rare, none having fallen under my own observation. 

Fifth. The intended rights of the discoverer of a vein are not properly secured by the 
existing law. I have in two cases (Golden Fleece Company vs. Cable Consolidated 
-Company, 12 Nev. 329, and Gleeson^s. Martin White Company 13 id. 460) intimated my 
own opinion that the discoverer of a lode is not compelled under the act of 1872 to 
mark out his surface claim immediately in order to protect his discovery. I have said 
that he ought to have a reasonable time for tracing the course of the lode and that if 
he worked diligently for that purpose, and did not unreasonably delay the marking of 
his location, he would be protected in his claim to 1,500 feet of the lode against one at- 
tempting to locate on his discovery while he was so engaged in making the develop- 
ment essential to a proximably correct adjustment of his surface lines. In the same 
connection I expressed the opinion that a local regulation defining the reasonable time 
during which a claim of 1,500 feet of the lode might be held by notice and record and 
work done in tracing the course of the vein would not be in conflict with the law, but 
in furtherance of its objects, and would be favorably received by the courts. All this, 
however, is a matter of very doubtful construction, and it ought to be made certain by' 
the terms of the statute. No such local regulation as that suggested has ever been 
made to my knowledge, and even if there had been, and it was perfectly certain that 
it was consistent with the statute, it is still extremely desirable, on the grounds stated 
in my second answer, that whatever regulation is made should be made by law and 
not by local and varying rules. 

Sixth. Litigation has arisen and injustice will certainly result unless the law is con- 
strued to mean or is so amended as to provide that the discoverer of a lode has a rea- 
sonable time for tracing before being compelled to mark his surface claim. 

Seventh. I have understood that parallel seams of the outcrop of the Comstock lode 
were located by different parties, but 

Eighth. As I understand the law, in all such cases the older location takes the whole 
vein as soon as the identity of the two seams is established. 

Ninth: It will very rarely happen that the outcrop of a lode willbe widerthan the legal 
width of claims. The width of claims will notberestrictedbylocalregulationsin districts 
where the outcrop is too wide to admit of such restriction, and I have never heard of 



400 PUBLIC LANDS 

an outcrop wider than six hundred feet unless the lode owned by the Richmond and 
Eureka Consolidated Companies at Eureka, in this State, is an instance of such excessive 
width. But if such a case should occur, the lode could he located under the act of 
1872 ; the surface claim would extend three hundred feet on each side of the center of 
the croppings. Under the surface the locator would have the right to follow his veiu 
to the foot- wall on one side and to the hanging wall on the other ; and, as the law 
never sticks at trifles, what he could do immediately under the surface he would prob- 
ably be allowed to do on the surface itself. 

Tenth. I know of no instance in which the outcrop of a narrow lode has deflected 
as much as 300 feet from a straight line drawn between the extremities of the surface 
tracings on the lode ; they often deviate more than 25 or even 50 feet from such a line. 

Eleventh. I am not conversant with the practice referred to in this question. 

Twelfth. I have not seen an instance of the case supposed in this question ; but, in 
my opinion, if B had obtained a patent for his claim, it would be no greater cloud 
upon A's title to the dip of his lode than would be constituted by any other title to 
B's surface ground, such, for instance, as an actual possession by inclosure and resi- 
dence. Title to that part of a lode which extends in its course downward beyond the 
side lines of the surface claim, has this inherent defect : the owner of the lode in following 
it into the land of another must always assume the burden of proving the continuity 
or identitj r of the lode he is following with its top or apex within his own surface 
lines ; so, also, if the owner of the land into which it extends attempts to mine upon 
the dip of the lode, he can only be prevented by making the same proof ; and this 
whether such adjoining land has been claimed for mining purposes or for any other 
purpose that gives title to the surface. 

Thirteenth. I have already stated in another connection that within my knowledge 
no title to valuable mining property in this State has been exempt from attack. The 
owners have been obliged either to buy up conflicting claims or encounter expensive 
litigation. But most of this litigation arose out of the defects of the old system of 
locating vein claims without reference to the surface, and the vnrious uncertainties cf 
the local regulations and mining records. The act of 1872 has effected a great im- 
provement, and if it had been better understood and more closely followed by the 
miners, the improvement would have been even more marked. But the miners have 
gone on, or at least did for awhile, locating the vein and treating the surface as a 
mere incident thereto, ignoring the vital necessity of defining their locatkms by mon- 
uments on the ground. Most of the recent mining litigation has .arisen Horn this 
cause, or from the alleged failure of locators to do the requisite amount of work on 
their claims, or from various causes antedating the act of lo<~2. As yet there has not 
been time for a great amount of litigation to arise out of attempts to follow lodes on 
their dip beyond the side lines of locations, or from attempts of claim holders to mine 
on lodes dipping in to their surface lines from outside locations. These seeds of strife 
are, however, germinating, and 

Fourteenth. There can be no doubt that the retention in the United States laws of 
the provision allowing locators to follow on the dip of their veins outside of their sur- 
face lines will occasion more or less litigation in the future. There will be actions to 
prevent owners from so following their lodes, and other suits to prevent owners of 
land from mining within their own surface lines. 

But I feel bound to add that, according to my observation, the right to follow the 
lode they have discovered as deep into the earth as it is practicable to work it is a 
right upon which the miners set the highest value. Any infringement upon it would 
be regarded by the miners of this State at least with intense hostility ; and although 
a system of square locations, such, for instance, as the old Spanish system, might pos- 
sibly prove of superior advantage in the end, I am satisfied that its adoption would 
be regarded as a grievance by the present generation of miners, and that its first effect 
would be to discourage prospecting. 

Fifteenth. I have drawn up more than o^c, set of rules for miners about to organize 
a district. I did this for the first discoverers of the Eureka mines, but am not sure 
that my rules were adopted. I think they were too short and simple to suit. At any 
rate the district was afterward* reorganized and new and elaborate rules adopted. It 
was a common thing for a half doz^n miners (;. g^ locator's) to organize a district, and 
on these occasions aliens participated as freely as citizens. They always chose a re- 
corder, and sometimes a president. The president's duty was to call and preside at 
meetings and to authenticate their resolutions by signing the minutes in which they 
were recorded. The recorder's duties were more important. It was his business to 
make and preserve a record of the written rules of the district, to act as secretary of 
all meetings of the miners, keeping a record of their transactions, and especially to 
file and record notices of claims, for which purpose he was sometimes required to go 
upon the ground and note the locality, with a view to the prevention of conflicting 
locations and the floating of claims. Usually there was but one book for recording 
everything, rules, resolutions of meetings, and notices of location, and not infrequently 
this was a little book that could be carried in a man's pocket. 



PUBLIC LANDS. 401 

Sixteenth. I have already stated in my second answer that the fundamental idea of 
a mining location was the taking actual possession of a limited quantity of mining 
ground. Miners' rules were strictly obligatory upon one point only, viz, size of claims. 
For the rest they merely prescribed the acts which should be deemed to constitute or 
be equivalent to an actual possession of the claim. No miner could hold by any means 
more ground than the local regulations allowed him to take, but if he chose to ignore 
the rules in other respects, and to incur the trouble of taking and keeping actual pos- 
session of his ground, such possession was just as efficacious as compliance with the 
rules. The only reason why locations were so frequently made under the rules and so 
seldom by acts amounting to an actual possession, was that the former method was 
vastly more convenient and less burdensome. The rules dispensed with the necessity 
of doing a great deal that would have been essential to an actual, open, and unequiv- 
ocal possession, especially of lode claims, which at their first discovery were seldom 
capable of definition by marks on the ground. 

From this it will sufficiently appear that the posting and recording of notices of claims 
were merely acts of possession and had that effect. The notice posted on the claim 
defined it by verbal description and showed the names of the locators. But this notice 
was exposed to destruction by the elements, and to the danger of removal or alteration 
by strangers, and so its record was provided for, principally in order to secure permanent 
evidence of the date and description of the claim. For the purpose of proving the 
date of a claim the record, when free from any appearance of alteration, was very con- 
clusive evidence, and, as to this particular, fraudulent alteration was almost impossi- 
ble, owing to the fact that the book was filled with records of claims in consecutive 
order, and one could not be altered as to date without altering those preceding and 
following it. But as a description of the claim the record was generally worthless, 
consisting as it did of a mere copy of the notice, with a certificate that it was recorded 
at a certain date. The requirement of the statute that the record, to have any effect, 
shall contain a description of the locus of the claim is a great improvement upon most 
of the miners' rules formerly in force. 

The effect of recording a notice within the time prescribed by law was to satisfy one 
essential condition upon which the claim might be held without actual possession and 
to keep it good during the tame allowed for doing the requisite amount of work. 
Doing the work perfected the claim. If each successive step after posting the notice 
of claim was taken within the prescribed periods, the effect was to give the locator a 
good title relating back to the posting of the notice and cutting off all intervening 
claims. And when a notice was recorded after the expiration of the time allowed for 
that purpose the claim was still good as to all the world except intervening locators, 
and could be kept good, like any other recorded claim, by doing the necessary work. 

Seventeenth. No one had a right to amend or alter the record of a claim ; but al- 
terations of mining records were in fact often made, sometimes with fraudulent intent 
I have no doubt, but much more frequently with innocent motives, the recorder and 
locators supposing that this was a proper way to correct mistakes of description in 
the notice or to effect transfers of interests among the locators or to their grantees or 
assigns. 

Eighteenth. I have seen frequent attempts to prove fraudulent manipulation of min- 
ing records, and although they were rarely successful, the fact that they were made 
proves how little confidence there is in the authenticity of such records. It is certain 
that there is no adequate security against the loss, concealment, destruction, or fraud- 
ulent alteration of the records of many mining districts. 

Nineteenth. I am decidedly of the opinion that it would be highly advantageous to 
abolish all mining-district laws, customs, and records ; to put the whole law of loca- 
tions into the statute-book, and to confide the making and keeping of the necessary 
records to public officers, whose fidelity is secured by bonds and their oath of office. 

The record of claims, I think, ought not to be made obligatory but merely permis- 
sive, as a means of holding the claim (of 1,500 feet of the vein) during such reason- 
able time as The statute may allow for tracing its course with a view to the proper 
location of the surface lines. For the purpose of making such records I think it would 
be better, if practicable, to allow county recorders or registrars of deeds in the re- 
spective States and Territories to act as mining recorders, ratherthan to compel min- 
ers in all instances to resort to the United States land offices, which are often very re- 
mote from the mining districts. 

Twentierh. I am not advised as to the feeling of claim-holders upon this question. 

Twenty-first. I do consider it desirable to retain the leading features of the present 
law for the location of lode claims, at least in those sections of the country where the 
mineral deposits come fairly within the definition of a lode. For other districts another 
system of location may be desirable. But whatever system is to prevail in the future, 
I think there is no doubt that all local mining- district laws, customs, and records 
should be abolished. The mode of defining claims should be clearly prescribed in the 
statute, and so also should be the amount of work necessary to hold them and to en- 
title the holder to a patent. Nothing should be made obligatory in order to obtain a 

26 LC 



402 PUBLIC LANDS 

patent except the discovery of a mineral deposit, the clear marking of a claim includ- 
ing the discovery and the doing of the necessary work. But if the present system of 
locating lode claims is retained, the law should be so amended as to allow the discov- 
erer of a lode, if he desire, a reasonable time for tracing its course before markiDg his 
surface claim, and should protect him in the mean time to the full extent of his claim 
on the vein. This privilege should be conceded upon condition that the discoverer 
should post a notice of his claim on the ground and record it within ten days with a 
description of the locus appended. This being done, he should have, say, thirty days 
after the record to set the stakes or erect the monuments required for marking the 
surface claim. Until the location was so marked he should be required to prosecute 
the work of development with diligence. 

I have no other specific amendments to recommend, but I wish to call attention to 
a class of difficulties likely to arise under the existing provisions of the act which 
ought to be obviated if possible. How this is to be done I confess I am unable to point 
out, but the matter is of too much importance to be ignored in revising the law. 

Mining locators are granted the exclusive right of possession of their surface claims, 
and all veins, &c, the tops or apexes of which lie inside of their surface lines extended 
downward vertically, although such veins in their downward course may extend beyond 
the side lines of the surface claim. No locator, however, has the right to go outside 
of vertical planes conforming to his end lines, notwithstanding the true dip of his lode 
would carry him beyond. In every patent of mining ground a right is reserved to 
other locators to follow their lodes on their downward course into the ground so con- 
veyed. (Revised Statutes, section 2322.) 

This being the law the annexed diagram illustrates a few of the numberless diffi- 
culties that will occur in applying it to surface locations that have not been made in 
exact conformity to the true and ultimately ascertained course of the lode. The line 
O P represents the course of a lode extending due north and south, and is supposed to 
be drawn between its extremities at the depth of a thousand feet from the surface. 
The dip of the lode is to the west and the outcrop appears at two points x and y. The 
top or apex of the lode where it does not reach the surface is indicated by the dotted 
line connecting x and y and extending beyond in either direction. Long before any 
better means exist of ascertaining the true course of the lode than is furnished by its 
outcrop A makes a location at x marked a a a a and B makes a location at y marked 
boob. In due time their claims are patented. Then C discovers the lode at z and 
makes his location c c c c, and later still D and E make locations as indicated, north 
of A and south of B respectively. The straight dotted lines A a A' m.Bb and B'b in- 
dicate the sections of the lode the tops or apexes of which are inside of the surface lines 
of A, B, and C respectively. The dotted lines d a and e a and / b and g b show the 
sections of the lode which are included by vertical planes conforming to the end lines 
of A and B respectively. 

Now come the difficulties. According to my definition of top or apex of a lode, and 
under what appears to me the only admissible construction of the law, C, although 
he locates after the patent to A and B, is nevertheless the owner of all that section of 
the lode included by the lines A' m and B 6, indefinitely prolonged, notwithstanding 
it is mainly included from the very top in the prolongation of the end lines of A and 
B. C is the owner because he has located the top or apex, and A and B are not owners 
for the reason that their claims do not include the top or apex of this section. Sup- 
posing the lode to be valuable, it can readily be seen what controversies will arise as 
the progress of development begins to show the true course of the vein, and enlightens 
the parties as to their boundary rights. Even without the intervention of C, A and B 
would come in conflict at h in regard to the widening section fhe. But in the case 
supposed, C would restrict A to the line A' m as his southern boundary, and B to the 
lind B b as his northern boundary. By this means A and B, being restricted by their 
end lines from mining on the widening sections A a d and g b B', would be completely 
cut off—A at 2,000 and B at 3,000 feet from the surface. Then this further difficulty 
would arise, that the entire top or apex of the lode being included in the various 
surface locations of A, B, C, D, and E, there would be no means under the law by 
which the widening sections A a d and g bW could be located or granted. The only 
remedy would be to cancel the patents of A and B, and allow them to readjust their 
surface lines. Before this, however, another controversy would have arisen between 
B and C, and still another between B and D, in regard to the excessive claim of B on 
the course of the lode, which it will be seen extends to a leugth of about 1,600 feet, 
whereas the law allows him at the utmost but 1,500 feet. These hints will suffice to 
indicate the nature of the task which the commission have before them ; and having 
no plan to suggest for meeting the difficulties in their way, I take my leave of the 
subject. 

Twenty-second. I have formed no opinion upon this point. 
Respectfully, 

W. H. BEATTY. 

The Public Land Commission, 

Washington, D. C. 



PUBLIC LANDS. 



403 



North. 




South. 



404 FUBLIC LANDS. 

Testimony of Edivd. B. Chase, civil engineer. Elko County, Nevada. 

The questions to which the following answers are given will be found on sheet 
facing page 1. 

Wells, Elko County, Nevada, 

September 12, 1879. 
To the Public Land Commission, Washington, D. C. : 

Gentlemen: Your circular letter asking replies to certain interrogatories, &c., is 
before me. Holding in view the object of the Commission — i. e. the scope of inquiry 
adopted, and the method you have taken to obtain the information sought — I find it 
my duty to declare it as my opinion that you will gather but very imperfect informa- 
tion upon the subject of agriculture and agricultural interests ; and I bespeak your 
most careful consideration of our interests and wants. 

We are a simple and unlettered people. We have a profound faith in those maxims 
that teach us that our government guarantees to us justice, humanity, and ' ; the greatest 
good to the greatest number." Believing so, and that the public lands are the people's 
heritage, an 'I held in trust by the government for the people, we hold that every acre 
"is and of right ought to be" dedicated as homes for the people. " The people" expresses 
a vast, silent, and passive quantity — an immense organ upon which any tune can be 
played that you desire the keeper to have uttered. Play us all you wish, gentlemen, 
out don't let us break down or go to pieces, because you wish different tunes played 
at the same time ; and remember, in considering the replies you receive to this circular, 
that this " vast organ " don't give the replies that some individual is playing it. 

1. My name is Edward R. Chase. I am a farmer, and live in Clover Valley, Elko 
County, Nevada. 

2. I came to Nevada while it was a Territory, and have not been out of it since 1864, 
and have never crossed a county line within it. 

3. I have sought to acquire an 80 " homestead " title ; no other. 

4. I have had the amplest means of knowing the practical working of the land laws 
in Nevada and elsewhere. 

5. I know from personal experience, after refreshing my memory from memoranda, 
that it takes more than ten years' time, and costs more than $400, to get a homestead 
patent to 80 acres — the case was not a contested one*. I know and declare that in 
another case, that of H. H. Chase, my brother, whose lands adjoin mine, who made 
the earliest location in the country, who settled his lands when his nearest neighbor 
was 50 miles off, who never lived off of them, who claimed only a homestead, who 
never permitted any laches and was never charged with any unfairness, moved onto 
his lands, in 1867, has traveled over 800 miles, has spent $500, and has, like myself, 
received no patent. I have never known a patent to be obtained but in two instances ; 
in one case it cost more than $75 ; in the other I do not know the cost, but do know 
it cost over $50. 

6. 1 can hardly say that there are defects inherent in the system, but think a few 
important amendments should be made in the law, and many corrections in the 
practice. 

1st. In this country many valuable pieces of land would be taken as homesteads if 
they did not lay so low in the valley as to make it wholly impracticable to live upon 
them. We want farms in the valley and homes along the foot-hills. The law should 
not require an actual residence upon the land, but the final proof should go to show 
that the homesteader neither owned nor claimed a more valuable home anywhere else. 

2d. As only those lands lying along water-courses are eligible as farms the strips are 
often narrow. Taken in quarter sections (contiguous forties lying side by side) the 
claimant does not get on an average half good land. Contiguity by corners ought 
to be permitted in homestead claims. 

3d. 1 can think of no reason why a homesteader should go before the register and re- 
ceiver. I cannot make the journey for less than $50. Section 2290 should be so amended 
as to read: " before the register or receiver or the nearest magistrate " (whose official 
certificate should state such fact) — " that he is the head of a family," &c. Section 
2262 should be similarly altered. All laws that require a sworn statement to be made 
of or c&ncerniug lands should be made before the magistrate living nearest the lands. 
The certificate of the magistrate should state such fact, and that he knows the wit- 
nesses, that they are credible persons, residing in the immediate neighborhood (iu cases 
of fiual proof). While it is more expensive to go before the register and receiver, it 
opens the door to fraud, in a country sparsely settled like this, as it is more difficult 
to perpetrate a fraud at home, where the facts are all known to everybody, than at the 
land office, where they are known to nobody. The official character of the magistrate 

* The only issue presented was, are certain improvements on the land. The owner says they are — 
a fiiet never questioned It is charged as one of the hardships of the system that the Commissioner 
di .1 and does, without any reason or necessity, order expensive contests, and involve the cases in delay 
an 1 cost. 



PUBLIC LANDS. 405 

may be established by the seal of the county clerk, if necessary. Pensions are paid 
and bounty lands issued upon proof taken similarly ; there is no reason, and great hard- 
ship, in not permitting it to be done with the land office. 

The desert-land act is open to the same criticism — or rather not the law, but the 
rulings of the Commissioner. It is a grievous " put " upon us to compel us to journey 
to the county-seat with two witnesses known to the clerk to be credible and who are 
acquainted with the land. The law says " we may file an affidavit." The Commis- 
sioner takes it upon himself to say before whom that affidavit must be made. 

The timber-culture act is similarly restrained in its operations. The act declares that 
the initiatory affidavit may be made before an " officer authorized to administer oaths 
in the district." The Commissioner by a recent ruling absolutely ignores the law, and 
will not, as I am informed by letter from the Land Office, accept of a filing made be- 
fore a local magistrate. Laws are to be construed according to the intention of the 
law-makers. When the f ramers of the law used the language, " an officer authorized 
to administer oaths in the district," they as clearly meant any officer authorized to 
administer oaths as they did that an oath should be administered. When they said, 
as in the desert-land act, " may file an affidavit," they as evidently did not mean to direct 
before whom it should be made as they did mean to direct before whom it should be 
made in a homestead application. When they use the language, " shall make an affi- 
davit before the register and receiver," &c, what difference can it make to General 
Williamson, to the country, to the cause of justice ? As it makes none, and by no pos- 
sible contingency does it make the Land Office safer against fraud, we must look for 
the reason in some way as appertaining to the Commissioner himself. We complain 
and believe that the Commissioner of the Land Office is an enemy of the homestead 
act ; that he has stood defiantly square across the path of the homestead settler and 
fought us off with all the diablery he could invent. Authorize one of your Commis- 
sion to come down among the people and take the sworn statement of the first dozen 
farmers he can find in Nevada ; my word for it, you will feel it your duty to go outside 
of the act prescribing your duties and to report a code of rules of practice that will 
relieve the Commissioner of the obligation of exercising any discretion. The wrongs 
and outrages the local officers have perpetrated upon the people will never reach you, 
responsive to this circular; the farmers are, as I have said, voiceless; many cannot 
write ; few can understand such terms as parceling surveys, physical characteristics, 
humidity of climate, and codification of laws ; they know if they could have been per- 
mitted to buy their lands as desert lands they could have obtained them much cheaper 
than under the homestead laws. Local rather than general changes should be made 
in the law. We are wronged, and need legislation to repair the wrong. 

1. The rule of double fees and commissions going to our land officers on this coast is 
simply a venerable swindle. When the rule was adopted it cost so much to live here 
that it was deemed no more than right. If their pay is not enough, government ought 
to raise it. We get poorer lands ; have to travel farther to get them than any people do. 

2. Our lands within railroad limits should have never been raised to double minimum. 
It is a fact, patent and clearly beyond question, that farms near the road are of less 
value than those remote, and the value increases as we recede. Reason: our markets 
are in the mining towns off the roads. And again, when farm produce is high the road 
enters always into competition with us, and we nearest to them get it worst. At the 
present time they are delivering baled hay for eight-tenths of one cent per pound, and 
charging us farmers $2.45 per cwt. for iron, salt, &c. 

Our Representative in Congress has always been in the interest of the railroad com- 
pany ; hence I could never get these facts before the Land Committee. If our lands 
were reduced to $1.25 per acre the railroad company would have to reduce theirs. 

3. The railroad lands ought to be restored to market. I have recently given fully my 
reasons therefor in a letter addressed to the Commission in Salt Lake City, to which I 
refer. The rules of practice need to be changed in one important respect : A man who 
makes an honest, fair location, pays his fees, and performs all the obligations the law 
imposes upon him, ought to be protected against expensive litigation. Instance : Ma- 
thews took east half southwest quarter, 12, 36, 59, Elko district, under the desert law ; 
it was on the bottom, and not eligible as a residence ; he worked for a man, and lived in 
a house 100 yards off the land ; he owned no other land. A Mr. Joseph W. Allen made 
an affidavit that it was not desert land; he did so in order to set up a claim and get into 
possession and gather a valuable crop of hay ; he entered and took off the hay. The 
General Land Office ordered a hearing ; I attended the hearing for Mr. Mathews ; he 
brought nine of his neighbors, who all testified that it was desert land. There was but 
little conflicting evidence. When the testimony was in, occupying three days' time, the 
receiver, Judge Carpenter, demanded $50 of him, which he paid, as an estimate of one- 
half the expense of hearing, &c. The rules of practice declare that the expenses 
shall be borne equally by the parties. The land is not worth $100 ; and it is wholly 
against legal precedent to burn a man and then make him pay for heating the poker. 
If Mathews had known that he not only had to pay all his witnesses, his attorney, 
and $50 besides, he would never have paid the money or contested the claim. The rules 



406 PUBLIC LANDS 

should be so altered as to have the hearing before a magistrate, responsive to printed 
interrogations. Keeping the facts in this case in view, no hearing should have been 
ordered until Allen filed affidavits alleging that the land was such "that no agricult- 
ural crops could be successfully raised without irrigation," or that "there were 
springs or other natural sources of water on the same to irrigate all or a larger part 
of the same." Then the fact of its aridity would have been put in issue, and those 
questions, and only those, should have been asked the witnesses. The hearing was 
ordered on the testimony of Allen and another that the lands were not desert lands, 
he understanding desert lands to be lands that nothing will grow on without irrigation ; 
whereas, as it transpired, a little hay could be cut along the swale any year. 

I do not believe there can be adopted any system of land-parceling surveys, as no 
geographical divisions can be made and to preserve the topographical system in use 
correction and township lines must be adhered to ; and as there appears to be no grave 
necessity for permitting mineral-land surveys to disturb them, I should recommend 
that the correction and township lines should be run that all irrigable and timber 
lands should be sectionized. 1 should adopt the following classification : All lands 
are desert lands ; all lands are pasture lands ; timber lands are not irrigable, and are 
such lands as are more valuable for their timber than for pasturage or minerals; arable 
lands are irrigable lands and more valuable for hay or grain raising than for any other 
purpose ; irrigable lands are lands that it is possible to irrigate. Mineral lands being 
lands that are of no value for agricultural purposes, can only be defined as non-irriga- 
ble lands that are more valuable for the metals contained within them than the tim- 
ber that covers them. 

I would hesitate to recommend any other system for the disposal of lands than the 
present. I would repeal the desert-land act ; it is in direct conflict with our home- 
stead theory ; it is an offer of a section of land at $1.25 per acre, while the homestead 
settlers are restricted to 80 acres within railroad limits, and pre-emptors to 160 acres, 
at $2.50 per acre, of precisely the same lands. I would so change the present law as 
that a failure to come forward and show that the lands had been redeemed and the 
law fully complied with within thirty days after the expiration of three years would 
work a forfeiture and a vacation of the location and the lands become restored to 
market. 

10. In my view the better system sought for the disposal of the public lands would 
be to restrict all to homesteads of 80 acres or a less quantity contingent upon five 
years' residence and cultivation. It rests quite within the possible that a system of 
artesian boring may make our desert lands productive, and it is impracticable and un- 
American to create large land owners. If our desert lands are of some value for pas- 
turage, the easement should in equity go to the settler nearest. 

SUBDIVISION — AGRICULTURE. 

1. I should divide our seasons into the wet and dry. We get very little rain during 
the crop-growing season. Snowfall in winter supplies us with means of irrigation in 
summer. 

2. Answered in the above. 

3. Not one acre. 

4. Perhaps 1 acre in 1,000. 

5. Wheat, barley, oats, and potatoes. 

6. Am unacquainted with water measure. 

7. All appropriated, and people quarreling over possibilities. 

8. I think my land is gaining in fertility (owing to the waste of alkali). 

9. Crops can be raised at an altitude of 7,000, 1 think ; they are raised over 6,000. I 
think the ranches in Secret Valley, Humboldt range, are over 7,000. It is the pop- 
ular belief that the higher we get the safer we are from frosts, and that if we could 
farm the highest ravines we would be secure. 

9. In our vicinity we have small streams and use all the water we take out of them 
for irrigation. There are no general or local restrictions placed on the use of water 
other than the laws. 

10. All water has been taken \ip by turning it out of its channel, under the act of 
1866, sanctioned by local custom and the decisions of our courts. 

11. So far only upon questions of fact. 

\ 12. I think all lands should be called pasture lands that are not irrigable ; therefore 
\ conclude 999 acres in 1,000 ; but much of the pastoral lands is of little value for pas- 
turage, and when once fed off are nearly worthless. 
13. No. No. 

1*4. No. No. Grant them to the State in lieu of swamp lands ; let us have them for 
educational purposes. 

15. Don't know. 

16. Two hundred. 

17. Don't know, as great changes have recently taken place. Our county once car- 



PUBLIC LANDS. 407 

ried more than 100,000. Our ranges are destroyed, and I think we will not winter 
25,000. 

18. Declined. Very much ; fast disappearing. 

19. No, they do not fence ; but control the courts and so far have pastured our farms 
off and prevented the question of free range from reaching the supreme court. 

20. I think not. 

21. Springs and creeks. 

22. Don't know. 

23. Disappeared. 

24. No. 

25. None ; some scolding. 

26. Ten cattle to one sheep. Bands of all sizes. 

27. None. 

27. Very little, I think. 

TIMBER. 

1. Very little ; mostly nut-pine. 

2. None : we have no fencing, and my planting has been utterly fed off with preda- 
tory herds. 

3. If at all, in 40-acre lots for fuel. 

4. No. 

5. None. 

6. No destructive fires. 

7. No despoiling ; all used for fuel. 

8. No restraint ; take all you need. 

9. No ; it would only be another source of revenue to the most corrupt set of officials 
ever known. The entire gap between the first register, Davis, and the last receiver. 
Carpenter, in Eastern Nevada, both of whom are unexceptionable gentlemen, has been 
filled with unworthy, unjust, bad men, that have oppressed and robbed everybody. 
No better men can be found in any department of government than the present officers 
in this section, but we all fear their removal on that account, and to leave the lands 
in the hands of men who can bounce us for nipping a load of fire- wood would be hell. 
When John S. Mayhugh was register of the Elko office I once received a business prop- 
osition from him to report Crawford of spruce anent, and others, and he would cinche 
them and divide. The same officer told me that he went to General Williamson in 
Washington to get some business done ; he referred him to a clerk, and he had to 
stand blackmailing of the grossest kind. You have my authority and the data. 

LODE CLAIMS. 

1. Have litigated many claims; am or was a mining engineer; am a civil engineer 

2. I have little useful knowledge on the subject. 

3. Doubt the wisdom of it. Don't know. 

4. Croppings. Line of strike as well as angle of dip change very much in the small 
veins of Eastern Nevada. No man can tell where a vein runs without following it. 

5. When veins are narrow and near each other it would be the safer way to confine 
all within the limits of a superficial survey, because "faults" are so common and the 
slides so extensive that when a vein is once lost there is no defining it when found. 
It is generally assumed that the first one struck in the line of progress is the one lost. 
There is no certainty of it ; lateral faults and dikes often obscure the question, and it 
is the principal source of litigation. I would make no survey a test. Let him who 
first discovers a vein locate under or above ground and define his rights thereto in the 
courts. If he thinks his neighbor is on him, trace him off. 

7. Frequently ; and have known them to run together, and have known them to do 
the opposite. 

8. Answered, no. , 

9. No ; I have never seen one. Ore is frequently scattered over much surface, but 
when the vein is reached within walls I think it will in all cases of fissure veins in 
Nevada be inside the limits. 

10. Yes ; not so frequently from the angle of dip as from slides. 

11. Disadvantage, I think. 

12. Such is unquestionably the evil of permitting false locations, and whether or 
not injustice has been done, it is clearly the case that it can be, and individual cases 
will not help the question, although there are many. 

13. Yes. 

14. They should be unquestionably permitted to do so. 

15. Five or six, none of which are now important. It is usually done by prospect- 
ing parties, consisting of two or more, electing a secretary and president and adopting 
laws. Usually a copy of a code is carried on such expeditions. 

16. Parties then record their " finds." 



408 PUBLIC LANDS. 

17. I know of no rule or precedent for amending it. 

18. It used to be frequent ; I do not know how to prevent it. 

19. I have given the question mature deliberation. I see many objections to it. 
Prospectors find what they hope is good ; they wish to secure it ; other parties are 
prospecting all around them. Written evidence of some person authorized to make a 
record is the one thing needed. It is possible that a rule requiring all mines that the 
owners wish to preserve after one year or more should be placed on record at the local 
land office would do, but with the record the Land Department has made for itself I 
think the miners would make a mutiny. 

20. There is grave doubt about it. The courts appear to be the safer, but involve 
much more delay and expense. I would not have confidence in the Land Office ; others 
might. 

21. " It is better to bear the ills we have than to fly to others that we know not of," 
&c. The above idea has crystallized in many languages, in many ages, in many forms 
of words. It is my answer. 

22. Yes ; I think this answered in interrogatory 19. 

PLACER MINES. 

I have never seen one ; my information on the subject is limited to statements of 
cases made by others. 

SUMMARY. 

First send you each his individual check to the Central Pacific Eailroad and Union 
Pacific Railroad Companies for the expenses of your junketings across the continent 
to attend Grant's reception, and be at liberty to give an honest opinion. 

2. Ask an investigation into the charges brought in this communication against the 
Land Office. 

3. Leave the present system and the present local* officers in their places. They are 
honest. For God's sake let the General Land Office try to conform to that method 
of business. It may be difficult at first. 

4. After reading the pre-emption law, the homestead law, the desert and timber 
culture acts, reflect that they were acts made by the people for the benefit of the 
people ; that they were intended to be, and of right ought to be, carried into effect in 
the cheapest and" most convenient manner consistent with the act, due regard being- 
had to ample protection against fraud. Then you will find that the pre-emption and 
homestead acts should be at once altered, so that all verifications could be and should 
be taken before the nearest magistrate ; that the desert act and timber-culture acts 
should be carried out in the same manner. The only remedy in the latter cases is to 
convince the Commissioner of the Land Office that his rulings requiring the affidavits 
to be made before a court of record is wholly unjustified by law, inconvenient, and 
unnecessarily expensive. The county clerk and district judge are no more federal 
officers than a justice of the peace ; there is no law to compel them to do any such 
business, and in our county they wholly refuse to do so. Claims for bounties and 
pensions, for commutation and back pay, and for military and all other claims against 
government are established by affidavits made in the manner indicated, the official 
character of the magistrate being verified by the certificate and seal of the county 
clerk. The difference in cost to me or any neighbor of mine would be $40 to .$75. Why, 
then, does the General Land Office exact it ? In the belief of nine-tenths of the far- 
mers, that they may be hindered and discouraged from seeking government lands and 
purchase lands of General Williamson's friends, the railroad company — poor ostrich ! 

5. Government lands within railroad limits should be reduced to $1.25 per acre. 

C> Railroad lands should — all that were not positively conveyed by the government 
before three years after the final com pletion of the road — be made subject to settlement 
and pre-emption like other lands, at $1.25 per acre, payable to the railroad company, for 
all future time, let whoever may pretend to be the owner. All lands accepted by the 
railroad companies after that time were subject by the act to that contingency. 

7. All lands on odd sections within railroad limits, not conveyed at this time, should 
be withheld. They were unquestionably a gift; they were granted to them provided 
that they should keep their telegraph line and railroad track in condition, so that they 
could pay their bonds in the manner they had agreed to. It was no legal considera- 
tion. If it had been, even, it was declined ; because section '3 indicates when they 
were to accept it — when a section of 20 miles had been completed and accepted, then 
bonds shall issue, &c. The law cannot bear the interpretation they seek to give it ; it 
would be unconstitutional. Congress had and has no power to dispose of the public 
land in such a manner. It would not be a "needful rule or regulation," and would be 
clearly against the " general welfare." When a latent ambiguity exists, a law is to be 
interpreted at all times consonant with the Constitution. A gift is a gratuitous offer : 
it cannot be infuturo. Not being based on a consideration, it cannot be enforced. 
With great respect, 

EDWARD R. CHASE. 



PUBLIC LANDS. 409 

Testimony of Gov. William A. Howard, Hon. Granville Bennett, and others, Yankton, Dale. 

Yankton, Dak., November 7, 1879. 
The Public Land Commission : 

Gentlemen : In response to the request of the Commission, I have the honor to suhmit 
the following remarks upon the subject-matter of your inquiry. These responses are 
prepared upon a few minutes' notice and are written off without review, but spring from 
previous thought and considerable experience. 

1. I was for about four years the United States surveyor- general for Dakota Terri- 
tory, and have executed numerous contracts upon the public land surveys within Da- 
kota, besides examining, as inspector, the work of many other deputy surveyors. These 
duties have taken me over the whole of Dakota, except the extreme northwestern part, 
and over much of it repeatedly. I am forty -two years of age, was born in Indiana, and 
have always lived in public land States or Territories. Am a graduate of the University 
of Michigan, both from the literary and law departments, and have had some practical 
familiarity with surveys since I was sixteen years of age. 

2. The public lands of the United States are an important trust for the people, and are 
to be used mainly for two purposes : (a) to furnish cheap homes for citizens ; (&) to 
aid in fostering free public schools. There are mining interests, of course, to which I 
do not refer now ; and the grazing- interests are deemed agricultural. For all these 
purposes, especially for all agricultural settlements, the lands must be kept cheap. 
The policy of the nation has uniformly observed this necessity. There is no purpose 
to create much revenue from these lands. We do not doubt but this is the correct 
theory, and that it will continue* to be the practice. This, then, demands an economi- 
cal system of surveys for all agricultural and grazing lands. That necessity is at the 
door of the inquiry, from my point of view. 

3. The present system of rectangular surveys is economical. The cost at present is 
but little over three cents per acre, including pay of deputy surveyors, the salary, 
office and assistants of the surveyor- general. This cost cannot be reduced in any 
part if the system is retained ; and no other system that I have seen proposed can be 
substituted without a very great increase in cost, which would necessitate large appro- 
priations of money, or a marked and very unpopular advance in the price of the lands. 
It would endanger the homestead system, now so popular and giving such excellent 
results in the Northwest and West. I fear that we should soon have a demand that 
all lands be sold at double minimum price, instead of given for residence and small 
fees. 

3. There would be little use in a more accurate and careful survey unless more per- 
manent and far more expensive monuments were planted to perpetuate boundaries. 
The present monuments are of wood or stone, further aided by mounds of earth and 
pits. There is a long remove between these and any other material. The next prac- 
ticable materials are iron or pottery. I have not data as to probable cost of these in 
the field when used, but it must be many times that of wood or stone. 

5. The present system of surveys is reasonably accurate and uniform so far as I 
know it. It conforms closely to measurements and tests otherwise independently 
applied in engineering operations for public works. The distance from Dubuque to 
Sioux City, Iowa, as traversed from railroad engineering and public-land surveys, 
agrees. That on the public lands was done by many different deputies at differing 
seasons, when they were exposed to dangers (one lost his life), and received small pay. 
The railroad engineering was by one party with most ample equipment and good pay, 
and was a continuous line. When Lieutenant Warren made a journey through South- 
ern Dakota many years ago, he located some points astronomically. This was before 
public-land surveys. From these and similar data the first official maps were made, 
When the public-land surveys were extended over this region they concurred with 
those points so fixed, and connected, sometimes many miles, all topography otherwise 
obtained and mapped. Other like proofs of reasonable accuracy are obtainable in 
many places. This is true along the Northern Pacific Eailroad. But the same or sim- 
ilar tests will show errors in land surveys. Sometimes these errors are bad. They 
arise from a gross violation of duty by deputies ; from a lack of skill, or, more often, 
a great lack of integrity. But these errors are mainly local and limited. The rectan- 
gular system checks its own errors, and leaves its fractional excess or deficiency at 
regular recurring places. These errors are measured, ascertained, noted, and checked. 
I also testify my belief that these errors are largely of the past, and that now very 
creditable and accurate work is done. This the government can secure uniformly by 
an inexpensive system of inspection, now used in part. 

6. Correctly executed, with posts of wood or the stone monuments (both used now by 
many, the post for section and the stone for quarter-section corners), the charred, 
stake, and the mounds and pits, the surveys endure very many years. I think when 
so built, as I believe they now are by every deputy surveyor in Dakota so employed, 
and finished according to the law and instructions, they reasonably answer the re- 
quirements of an economical land system. If we had feudal estates and vast and 



410 PUBLIC LANDS. 

valuable private domains a more expensive system would be desirable. The present 
serves its purpose until the greatly increased value of the lands as private property 
shall justify private owners in replacing government monuments with costly and per- 
manent ones. 

7. The rectangular system should by all means be retained so far as agricultural 
settlement is expected to extend. Its nomenclature is perfect. No other could be 
substituted wholly for it. The distinctive features of that must be maintained for a 
popular system. It is quickly understood by native and foreign immigrants alike. 
Any departure in agricultural regions must, therefore, be but partial and subordinate 
to this, dependent upon it and assimilated to it. This supposes that in certain cases, 
as in small hilly tracts, bends of rivers, on shores of lakes, where the lands are only 
suited for pasturage and are exceptional, where considerable forests occur, and in 
similar cases, it would be desirable to have larger or irregular tracts. I further re- 
mark why the rectangular system should be retained, speaking especially as to Dakota 
Territory : 

(a.) East of the Missouri River this system is largely extended and is advancing 
toward completion. The standard lines are run and established much beyond the 
subdivisions in places. The exterior township lines dependent on these are partially 
established also, and the subdivisions are irregularly advanced within these. A large 
area is sold and settled upon and caimot be disturbed. Thus the only feasible plan 
is to complete this system at least to the Missouri River. 

(&.) The act of Congress organizing Dakota Territory and providing for establish- 
ing the office of surveyor-general therein is a sort of public contract with all settlers 
and with the people in their governmental capacity *hat this system should continue. 

(c.) The same act reserves sections 16 and 38 in every township : " Are reserved for 
the purpose of being applied to schools in the States hereafter to be erected out of the 
same." (12 Stat., page 243.) This involves the highest interests and good faith, 
and I cannot see how it can be violated or its pledges fulfilled under any other system. 
Now, holding the office of superintendent of public instruction for the Territory, I 
know how large an interest this is and how important a place this inchoate resource 
holds in the just expectations of our citizens. 

(d.) There are grants to railroads, mainly to the Northern Pacific Railroad Com- 
pany, whereby alternate sections are donated for the building of that important high- 
way. This line is constructed nearly to our western boundary, and the surveys within 
a grant eighty miles wide, with twenty miles additional for indemnity lands, are in 
every stage of advancement, from completion at the eastern border to partial begin- 
nings far west of the Missouri River. 

(e.) Our general and local laws, in fact to a considerable extent our local govern- 
ment operations, are based upon rectangular surveys. With slight exceptions the 
boundaries of counties, townships, school districts, and other subdivisions coincide 
with and are described by this system. Unorganized counties are declared partly in 
advance of surveys by theoretic lines soon to be run, so settlers may know upon what to 
depend in these respects. Our tax laws, our legal forms, and often the very jurisdiction 
of our courts, rest upon these lines. They are an indispensable public convenience. 

8. With the exception of the Black Hills and the Bad Lands of the White and Little 
Missouri Rivers, and limited adjacent regions, and some undetermined area in the 
northern or northwestern parts, Dakota is a series of vast plains, over which this 
system can be extended as feasibly as over Iowa or Eastern Kansas or Nebraska. It 
therefore seems that over all but the southwestern part, and over much of that lying 
toward the Missouri, the rectangular system should extend. I do not here intend to 
say that it should not extend over much of the regions excepted. 

9. Strongly covvinced of the merit and the practical success, and even legal neces- 
sity of this system, and believiug it to be now very excellently and faithfully executed, 
I would yet- not object to a certain limited modification of the practical work. So far 
as the standard parallels and guide meridians are concerned, it would perhaps be as 
well or better to expend more money and greater care upon them, and to fix the monu- 
ments thereon with permanent materials. The standard lines as these are called are 
the real geographic lines. They are connected and continuous. The parallels are 
intended to be true parallels, having the curvature due to their latitude and the ob- 
latenessof the earth and to run continuously and without break east and west. The 
guides are less important and check between the parallels. If these lines could be run 
and established by careful triaugulatiou and their corner boundaries permanently 
marked, the errors of the present system, which are not great now, would theu be im- 
material even for geographic and other considerations above the mere demands of 
parceling and selling lands. While saying this I yet contend that lines have been run 
and are now being run in this Territory — even in the Black Hills, over its roughest 
parts — that will stand severe tests. They have not all beemso run, and 1 wish to see 
all the standard lines thus precisely established. But, I repeat, I do not regard it even 
practicable and by no means necessary to carry this to all the details. If in extend- 
ing the standard iines thus by triangulation a region is found demanding by its mount- 



PUBLIC LANDS. 411 

ainous character the same care in its details or other departures from the general sys- 
tem, the change could be specially and locally made. I do not see any objection to 
pushing this system of standard lines over the whole interior, for it would thus furnish 
the convenient base lines and initial points conveniently at hand for all the modifica- 
tions of the system required by the features or characteristics of any particular re- 
gion, large or small. So I would preserve the rectangular system atd its nomenclature 
and subdivisions wherever convenient or best adapted to the country as it is in nearly 
all Dakota. 

10. The present system of administration under surveyors-general I would retain. 
It is easily shown, I think, to be most economical. The same work cannot be done for 
the same cost in Washington City. The survey office should be near the local land 
offices, and in the general region to be surveyed, where it can observe all the facts 
which bear upon the questions before it. Thus it should observe the volume and 
tendency of migration and the probable future tendencies of settlement. It should 
know something clearly of railroad and other enterprises which would affect given 
regions and require surveys. Not the least of its intelligent duties is to know the 
agricultural successes and failures, their causes and permanence. These all bear 
directly upon the question of surveys, and they can never be properly known except 
by a resident officer. As to mineral surveys, it seems that a surveyor- general and his 
local supervising office are a necessity. In no other way can the interests be accom- 
modated. The interests subserved by the office are more local than federal, arid all 
the bearings of the duties can be properly observed and weighed only by a local office. 
His responsibility to the general government can be as well provided for as if his office 
were in Washington City, while his public usefulness is far greater. 

11. Dakota Territory has a larger body of unsettled but valuable public lands that 
are agricultural without irrigation than any other three surveying districts combined. 
It is nearly all agricultural. Its present crops testify this. East of the Missouri River 
95 per cent, of it is so fit for agriculture, and a large part of this is hrst-rate. West of 
the Missouri a smaller per cent, is agricultural and a large part is grazing land. Even 
there close about the Black Hills agriculture has shown remarkable success. 

12. The Black Hills I have examined and would like to describe, but time does not 
permit. I have no personal interests there now nor prospectively. I testify disinter- 
estedly. The people are enterprising and of the best material, having only a small 
element of lawless persons. They have as good schools as many older regions. 
The teachers are educated and efficient, and the mental capacity of the pupils is rather 
above the average. I have visited nearly all the schools there. The country contains 
vast wealth, which is now rapidly developing. To me the examination opened won- 
derful resources, and I believe within a very few years it will be regarded as the most 
wonderful region upon the continent for wealth in gold. Its present showing deserves 
the consideration of the government. 

These views, opinions, and facts are stated upon my knowledge and candid belief, 
and are convictions formed from eleven years' residence in Dakota. They are not in- 
fluenced by any fancied or real personal interest, but rest on the facts and public 
interests. The rapid work in writing them leaves many other arguments that occur 
to me unmentloned. 

The present settlement laws of the United States are as applicable to the lands of 
the United States in the Territory of Dakota as they were to government lands in the 
States of Iowa and Minnesota, excepting there should be new and stringent legislation 
enacted in regard to the care and preservation of the timber lands belonging to the 
government in the Territory. The mining region, known as the Black Hills, in the 
southwestern portion of the Territory, of course, comes under the present mineral 
laws of the United States, and would be affected by any changes in such laws the 
same as other precious mineral-bearing regions. 

I have the honor to remain, very respectfullv, vour most obedient servant, 

WM. H. H. BEADLE. 

The following were all present and fully concur in the within : Gov. William A. 
Howard; Hon. Granville G. Bennett, Delegate in Congress; Major F. J. DeWitt ; 
Judge W. W. Brookings; Hon. William P. Dewey; G. A. Wetter, register, land office; 
Lott S. Bavliss, receiver, land office. 



Testimony of Robert M. Catlin, civil and mining engineer, Tuscarora, Elko Comity, Nevada. 

The questions to which the following answers are given will be found on sheet 
facing page 1. 

To the Public Land Commission : 

Gentlemen : I have been instructed to answer such of the inclosed interrogatories 
as may be within the range of my personal information. Having been absent from 



4i2 PUBLIC LAND?, 

home for some time, I did not receive the paper as soon as otherwise I should have 
done; hence my delay in obeying the instructions therein contained. I will refer in 
each answer to the number of the question, without restating it. 

1. My name is Eobert M. Catlin ; reside in Tuscarora, Elko County, Nevada ; pro- 
fession, civil and mining engineer. 

2. Four years and a half. 

3. No. 

4. My experience has been confined to mining-lode claims. 

5 and 6. About $325 for a lode claim, and the time varies from six months to three 
years. I cannot understand why (as is frequently the case), when an application is for- 
warded to Washington, after passing through the local land office, it should there remain 
so long without hearing something of it. If it is informal, the applicants ought to be 
notified at once. I have known patents issued before another which was applied for 
two years before it had been even heard of, and after a while the last, which, should 
have been first by years, comes, and meanwhile the applicants have heard nothing. 
The above facts would give color to the impression prevalent here that when a raining 
patent is applied for it is quickest and cheapest to fee some patent lawyer in Washing- 
ton (of whom there are many) claiming to have " immense facilities," &c. The present 
rules may be good enough, but there certainly is something wrong in their working, 
and mining men are beginning to feel that it takes so long to get a patent that it is 
hardly worth while to apply for one, as in nine cases out of ten they can work out the 
ore-body contained in their claim long before they can get a patent. Hence the gov- 
ernment loses not only the price of the land, but also the mineral is rapidly being taken 
from the government lands by a sort of skimming process. 

7. Elko County contains a large amount of grazing land and a great amount of min- 
eral wealth. There are a few valleys where barley is grown by irrigation, and the 
timber grows in little patches in the mountain gulches. Very little timber. 

8. In our vicinity, I opine, a general rule would be about the only way practicable. 

9. The present system appears to work very well. I have been county surveyor. 

10. Have never thought of any better plan. 

AGRICULTURE. 

I know very little about agriculture, as it is but very little followed here. 

TIMBER. 

1. We find wood in the mountain gulches and on the mountains, but it is not abun- 
dant. Willow, quaking aspen, and alder are found in the gulches, while white fir and 
a scrubby pine are sometimes found on the mountain sides. 

LODE CLAIMS. 

1. Have been United States mineral deputy surveyor for four years in Elko County. 

2. I have found that locators make their locations in such a haphazard way that 
often it is almost impossible to tell where their claims were originally situated. They 
locate upon the first discovery of mineral, without much prospecting to determine 
the course of their ledge. Frequently they locate at right angles to tbe course of 
the ledge, and another comes along, and finding, as he supposes, a cross-ledge, locates 
in good faith. Soon, however, the first party finds the true course of his ledge 
and orders second party off, and, having pulled up his own original stakes, resets 
them, and second party has no remedy for it. May be he has gone on in good 
faith and expended his money freely, while first party lays back and lets him pros- 
pect, and when he develops the course of the ledge first party claims it, knowing 
that there is no record of the original course of his claim, and being able to prove 
priority of location and that the second party is on the same ledge and within dis- 
tance of his location point, it frequently happens that great injustice is done. I 
have often thought that the law should require a locator to designate the courses of 
his claim. Nearly every prospector has a compass, and in case a surveyor is not avail- 
able he can himself describe his boundaries with sufficient accuracy. In case a sur- 
veyor is available, as is usually the case in most camps, his records would save many 
a dollar to men who now are at the mercy of any prior locator whose location point is 
within a quarter of a mile of him. 

3. If some such provision were made in the present law, I think conflicts under this 
head would be avoided. 

4. I think the apex of a vein is the line such vein would make in its intersection 
with the surface, calculated from its true dip at each point. The course and dip may 
usualLy be determined within a year from location. 

6. Occasionally, but rarely. 

7. Very rarely ; once or twice. 



PUBLIC LANDS. 413 

8. The claims have not been of much value and are not worked, 

9. Very rarely; never in my experience. t 

10. Very often. 

11. Frequently to disadvantage. 

12. I have never known of it being done. 

13. Sometimes ; very rarely. 

14. I think the present law adequate. 

15. Never. 

16. The notice usually only gives the number of feet, names of locators and of claim. 

17. No. 

18. No. 

19. Yes. 

20. Yes, much more satisfactorily. 

21. I think of no other suggestion than that contained in No. 2. 

22. Two years ought to be long enough. 
Have had no experience in placer claims. 

Respectfully, 

ROBT. M. CATLIN, 

Tuscarora, Nevada. 



Testimony of B. F. Leete, Reno, Washoe County, Nevada. 

The questions to which the following answers are given will be found on sheet 
facing page 1. 

L. & M. Eagle Salt Mine, 
Reno, Washoe County, Nevada, December 6, 1879. 
Public Land Commissioner : 

Dear Sir : I have imperfectly appended my answer to a few of your questions. The 
waters of the Truckee River flow to waste from October to May, about six months of 
the year, at least 75 per cent, of the annual flow. Of the balance not more than one- 
half is utilized. 

From the inclosed printed slip you will gather my idea as to the food-producing . 
resources of this State. They lie more in the waters of irrigation than in the land. 
A monopoly of the waters gobbles up everything in food-producing resources, makes 
farmer-boys tramps, reduces good men to desperate want. The conformation of our 
country is such that the Truckee River can be turned into dry basins and held from 
October to May and then drawn for irrigation. Let the waters of irrigation of the 
Truckee be appropriated to the State. Let the State have one-half million acres arable 
desert lands, proceeds of sales to be applied to constructing irrigation canals, State to 
maintain canals ; let no man have more than 40 acres of irrigable land ; that after five 
years' occupation and cultivation furnish him water at, say, $1 per acre per annum ; 
proceeds to support State government ; then will the waste water of the Truckee make 
the desert a happy and prosperous home. 
For short, 

B. F. LEETE. 

Joint Resolution petitioning Congress to donate 500,000 acres of arable desert land 
to the State of Nevada for internal improvements, the proceeds of such land to be 
applied to constructing irrigation canals for the purpose of developing the food- 
producing resources of the State, because — 

First. As a people we are buying our food from neighboring States. 
Second. The permanent wealth and prosperity of the State lies in the development 
of its food-producing resources. 

Third. The food-producing resources of this State lie in arable desert lands and the 
waters of irrigation. 
Fourth. The arable desert lands in their desert state are valueless. 
Fifth. Such lands can only be made productive and valuable by irrigation. 
Sixth. That a holding or controlling of the waters of irrigation controls the food- 
producing resources of the State, therefore the waters of irrigation should be appro- 
priated to and vested in the State, the State to construct canals and deliver the 
waters for irrigation, at such rates as may be fixed by the people from time to time, 
forever, thereby placing the production of food to his own use and benefit within the 
reach of laboring men, and for this State within this State : Therefore, be it 

Resolved by the senate (the assembly concurring), That our Senators and Representatives 
in Congress be requested to lay this subject before Congress, to the end that a grant 
of arable desert land of at least 500,000 acres shall be had to this State, the proceeds 
to be applied to internal improvements in the construction of irrigation canals for 



414 PUBLIC LANDS 

developing the food-producing resources of the State. Such land to be selected from 
any land eligibly situated for irrigation along the line of location of such canals, and 
within a belt of ten miles in width on either side thereof : Provided, That not more 
than 80 acres shall be conveyed by the State to any one citizen or person after actual 
residence and cultivation for a period of five years. 



Testimony of Thomas J. Bead, Eureka, JSFev. 

Thomas J. Read, Eureka, Nev. Been engaged in surveying mines seventeen years ; 
since the passage of the mineral laws in 1866. 

That for two years there was virtually a vacancy in the land office, and I had to look 
after the office in order to get my mineral work through. 

I have got out or in progress more than 300 patents for mining claims, about one- 
thirteenth of all taken out in the United States. 

The expense to obtain a patent for a mine 1,500 by 600 feet is $300 ; that includes 
land, advertising, and all expenses. 

I have been over the entire land district and know it. 

Would call the entire State of Nevada a mining and grazing State ; agriculture is a 
mere incident ; I know the district and State thoroughly. 

The State is a succession of mountain ranges running north and south, with valleys 
in between. 

The tall mountains, the Sierra Nevadas, are covered with timber fit for lumber, and 
the rest of the mountain ranges are covered with small timber, nut-pine, &c, used for 
fuel ; the water-courses are small in number and limited in supply. 

The rain and snow fall of the whole State is from 6 to 8 inches. 

There has been no change in the rain or snow fall since I have been in this State. 

I would classify the lands in Nevada by calling them timber, mineral, arid, and 
irrigable. 

I would let this classification be done by the deputy surveyors in their field-notes 
and maps. 

When townships are surveyed on streams or water-courses ; where irrigation is prac- 
ticable by the lay of the land, the deputy surveyor by instrument should ascertain the 
altitude, and that altitude should be carried out on ail maps in the range of these wa- 
ter-courses ; also should show by contour lines or otherwise the slope of the land, 
whether it could be irrigated or not. This map when returned to the district land 
office would be the basis for the sale of the lands, whether irrigable or arid. 

The rainfall in Nevada commences about September 10 and lasts till May ; this in- 
cludes snows. 

No part of the State can be cultivated without irrigation. 

Most all the water in the State has been taken up. 

The laws of the State and the decisions of the supreme court of the State give the 
water to the first appro priator to do as he pleases with it ; provided he takes it out of 
the stream and uses it, he can change it from one piece of land to another and he must 
turn the excess back in the stream. . 

I have never known a valuable water-right but what there has been a conflict about 
it, generally costing more than the water is worth. 

One acre out of 100 is agricultural by irrigation ; 90 acres out of 100 pasturage; and 
9 timber; the mineral lands are included in the timber and pasture lands. 

A pasture homestead should be allowed on the arid lands for the purpose of raising 
cattle, say of 3,000 acres. 

These arid lands should be surveyed and sold at not exceeding 10 cents an acre, and 
in unlimited quantities, protecting the present occupants of the ranges with their herds 
of sheep and cattle. 

About thirty to forty acres are required to keep a beef in this land district. 

The increase of a herd of a hundred cattle would keep a family. 

The grasses in this State are bunch grass (which is the principal pasturage grass) 
and the white sage, which is made fit for use for the cattle by the frosts. 

The glasses on the range have decreased, because the cattle and sheep eat it, 
roots, stock, seed, and all. This could be obviated if cattle men had the ownership 
or assured possession of their ranges. They could fence the ranges, either by fence 
or herders, and thus retain control of the range necessary for their band of cattle 
and keep interlopers off, and they could move their herds from place to place on the 
range, and thus secure a succession of grasses, giving it time to seed and reproduce. 

Sheep and cattle will not graze on the same lands. 

I believe in the retention of the rectangular system of surveys of the public lands, 
with the addition of, first, more permanency in corners and stakes, as in a long expe- 
rience as a civil engineer I have frequently been called upon by settlers to rerun old 
survey lines, so that they could ascertain their lands, and have generally found the 



PUBLIC LANDS. 415 

\ 

stakes and comers obliterated because of the rotting down of the stakes and the 
tearing down of the monuments, and even the best deputy surveyor, under the pres- 
ent system of marking the surveys, can't make his work hold more than live years. 

The government should provide iron or other metal permanent stakes or posts, say 
at the intersection of every four townships ; and I suggest the improvement of the 
present system of surveying by the addition of triangulation, so that isolated tracts 
of settlement or other lands can be reached by the surveys without the great ex- 
pense, as at present, of surveying the exteriors and subdivisions of many townships. 

I suggest that the timber lands of the United States be let alone as they are now — 
I mean in the State of Nevada — because the amount of timber is so small as against 
the total area that it would not pay to survey it. When the timber in this district is 
cut clear off it comes again, but very slowly. The mahogany is one hundred and fifty 
years getting its maturity. It is a dwarf and does not average over 15 feet in height 
and about 8 inches in diameter. It is best for fire- wood. The juniper is not lit for 
charcoal and is only fit for fuel. It gets its maturity in about forty years. It is a 
scrub, seldom reaching more than 15 or 20 feet. The nut-pine is the most valuable 
tree of any outside of the timber on the Sierra Nevada, and grows on most of the 
mountain ranges. It is the most valuable for charcoal, and reaches its maturity at 
from forty to fifty years, and grows to the height of 20 to 25 feet. Charcoal is an in- 
dispensable element in smelting in this State. The forests of the trees above set out, 
unlike the pine forests of the Sierra Nevadas, grow at wide intervals. On one side of 
a mountain range you find a forest where the snow lies, say the north side, and then you 
go six or eight miles on the other side and find none. My observation is that the cut- 
ting off of these forests does not affect the rainfall of the State, not an inch. The 
mountains about the Humboldt which furnish the snow and rain for that stream are 
bald of timber. 

I would place the jurisdiction over the public timber lands in the hands of the Uni- 
ted States district land officers, who should be authorized by law to issue license to 
responsible persons to cut and use timber on the public lands, this for the purpose of 
protection, and providing that the smaller growth of timber should not be cut. The 
reason why I do not favor the sale of these timber lands is that every dollar added to 
the cost of smelting by reason of charges of wood for charcoal adds to the already 
great cost of smelting our ores of gold, silver, and lead, and would prevent the smelt- 
ing of a vast amount of ores which are now worked at a very small and close profit. 
There are no fires of any moment in this district. 

Persons just build a brush fence to mark the lines of a land claim for timber. This 
is respected under the local usages and customs. 

I would suggest that it be left to the miners of a locality to adopt, as the formation 
shall warrant, either a square location with end and side lines or the location permit- 
ted under the present act of Congress, which I would reduce to 100 feet on each side 
of the center of the lode. 

No official survey of a lode claim should be filed which overlaps on the surface. 

The croppings I understand to be the top or apex of a vein or lode. The top or 
apex, the course, and angle or direction of the dip cannot be determined in the early 
workings of a vein or lode. 

The intended rights of a discoverer are properly defined and protected by the locat- 
ing of a claim in many cases under the existing laws, for the reason that if the ledge 
crops out for the 1,500 feet the miner can mark his monuments so as to give his side 
lines accurately, and in blind ledges they seldom run for any great distance, and are 
generally pockets, so he is not much injured by the blind feature. 

The ledge on which is the Eureka and Richmond in this mining district is, say, in 
some places, 700 feet. The local law of this mining district permits the taking of 100 
feet on either side of the ledge, so that in this case neither the Eureka nor Richmond 
would have been injured, because they would have had the whole ledge in width and 
100 feet on either side. 

I don't think it would be policy to change the present laws in regard to lineal loca- 
tions of lode claims to fit the few cases where the ledge will cross the side lines and 
leave the man's ground after he has staked it. When a locator locates a lode claim, 
allow him to get a patent without the expenditure of $500 for work, for the reason 
that by the time he has expended his $500, if he has developed a good mine, he has 
simply opened up a way for jumpers and blackmailers. I have never known a valu- 
able mine but what was burdened with serious and disastrous litigation. 

The present mining laws of the United States are very good, and only need a few 
practicable additions and amendments. 

I had experience in forming mining districts in Palmyra and in Washington districts 
in 1860 and 1«63. 

In organizing a local mining district the men who are present, sometimes two or 
twenty as. the case maybe, and need not be practical miners, hold a meeting, elect a 
president and secretary, adopt mining laws, setting out the boundaries of the district, 
elect a recorder and fix his fees. The recorder keeps a book in which is kept the record. 



416 PUBLIC LANDS. 

of the meetings, which is the basis of the title to width and length of a lode. This book 
remains in his possession ; he is under no bond, and the record could be altered by him 
at pleasure. The notice which the miner gives the recorder is a copy of the one posted 
on the claim, and the miner often floats this notice about until he gets what suits him. 
I have known these records to be altered by the recorders, and in some cases the books 
lost, burned, and destroyed. I knew this to happen in Belmont and Bullion districts 
in this State. There is no security against frauds of this kind. In view of all this I 
believe that all mining-district laws, customs, and records could advantageously be 
abolished, and the whole initiation of record title as to future locations be placed ex- 
clusively with United States district land officers, making provision for convenience 
of the miners at isolated places a great distance from the office. 

The limitation as to possessory title under the mineral laws should not be enacted 
into a forfeiture ; in many cases miners are too poor to pay for their claims and hold 
their possessory titles by doing work upon them as now provided by law. 

I have cases of mining patents pending before the department at Washington for 
more than nine years. The average time in getting a mineral patent from this State is 
about three years. If we desire to hurry them by retaining an attorney in Washington 
and paying a large fee, we can get patents in from thirty to sixty days. This is all 
wrong ; patents should be issued in their turn, and promptly, and no preference given 
either to attorney or principal. 



Testimony of A. D. Bock, surveyor, Eureka, Nev. 

1. A. D. Rock, surveyor, Eureka, Nev. 

2. Thirteen years. 

3. By possession only. 

4. Only by observation and surveying 

5. No answer. 

TIMBER. 

1. There is but little, and mostly slow growth— pifion and cedar. 

2. None. 

3. I would sell in small quantities to citizens by entry, after local surveys. 

4. I would not ; it would not pay for sectionizing. 

5. No growth from old stumps ; it would take fifty years. 

6. One must have some timber. 

7. To settle the country. 

8. Is his by right of possession. 

9. I think they would, with restrictions ; not to incur expense in surveying. 

LODE CLAIMS. 

The local rules and acts of Congress are sufficient as now found. Supreme court 
decisions are generally about right, and generally satisfactory. 



Testimony of David Van Lennep, surveyor, Winnemucca, Nev. 

The questions to which the following answers are given will be found on sheet 
facing page 1. 

Answers to questions submitted by the Public Land Commission. 

1. David Van Lennep, Winnemucca, Nev., surveyor and aasayer, United States dep- 
uty surveyor, Humboldt County county surveyor. 

2. Eleven years. 

3. Acquired + itle to public lands of the United States for other parties under the 
desert-land act. 

4. By beiug in contact with parties acquiring the public land. 

5. One difficulty presented in this county (it is very extensive) is the expense and 
loss of time of going to Winnemucca and Carson to make affidavits before the proper 
officers ; also the necessity generally of employing legal advice to draw papers prop- 
erly. I do not know of any remedy. 

7. The county is cut by mountain ranges, almost all running nearly north and south, 
between which are valleys from two to ten miles wide, and through the latter the main 



PUBLIC LANDS. 417 

water courses flow or make sinks. These courses or rivers are fed partly by springs 
from the mountains, more largely by rains, but mainly by snow melting on the mount- 
ains. On account of the scarcity of water and the necessity of irrigation to obtain 
any kind of crop only a small portion of the land is agricultural, properly speaking ; 
a larger proportion is pastoral. Grass is abundant on the hills and mountains ; also in 
the bottom lands in ordinary seasons ; at present, after two dry seasons, grass is very 
scarce everywhere ; it is best on the mountains. There is also much mineral land, so 
called ; a very small quantity of timber land. The timber is only fit for fuel and farm 
purposes, such as fences and out-houses ; it is not fit for lumber. 

8. Land that can be irrigated should be classified agricultural, provided the soil is 
rich and does not contain too much soluble salts, such as common salt, alkali, borax, 
&c. ; pastoral, when producing natural grass and brush fit for cattle, provided there is 
no valuable mineral found thereon, and provided the sale as pastoral would only 
mean the surface, irrespective of mineral that might be discovered after the sale ; 
mineral, to be only such lands as have mineral deposits or ledges bearing valuable min- 
erals ; salines, having a deposit of alkali, common salt, &c, &c, on the surface; 
these are considered worthless unless they have enough salts to gather. 

9. Agricultural lands to be acquired in such subdivisions and quantities allowed 
now, with privilege to acquire pastoral lands besides in larger quantities but in same 
subdivisions now in use, with the option to take land in a different place or away from 
the agricultural land ; mineral as at present ; saline only when the salt is found in large 
enough quantities to gather, to be taken as placers. 

10. By the above suggestions it is believed that more land will be acquired by actual 
settlers, at the same time making the acquirement of land as simple and economic to 
settlers as possible ; increase the fall of rain and snow to about double the present 
rate and there will be a demand for land and homestead. 

AGRICULTURE. 

1. Climate good ; rainfall scarce ; length of season short, having frost almost every 
month in the year ; snowfall in winter in the valleys moderate ; more abundant on the 
mountains ; drifts in the deep ravines, and when heavy gives a good supply of water 
for irrigation. 

2. From April to October rain, or snow that melts away fast, falls in small quan- 
tities. The heavy snowfalls are liable to come in December, January, February, or 
March ; best when they come in December and January, as the snow by freezing is 
more likely to last later as a supply of water for irrigation. The thawing of snow on 
the mountains comes mostly when needed, but frequently in too great abundance in 
spring and too little in summer. 

7. The general supply comes from snow on the mountains. Melting of snow swells 
and overflows at times the rivers, such as the Humboldt, Little Humboldt, and Quin's 
Eivers ; also creeks, such as Martin, Cottonwood, Buena Vista, Kayoti, and many 
others. By the end of August, and sometimes before that date, both rivers and 
creeks are dry one to four miles after leaving foot-hills ; many do not reach the valleys. 
The Humboldt River is an exception. Springs are found in different localities; each 
irrigate a very limited amount of land. Most of the little springs in the mountains, 
in August, September, and October, run only a few yards from their origin. 

8. Irrigation is comparatively in its infancy in the county, although settled for 
about eighteen years. Generally too much water is used and wasted. There is no idea 
or impression that irrigation impoverishes the land. Much land in this county has 
given rich crops of grains (cereals), year after year. Manure is not used, except for 
vegetables, &c. I do not know that crops are raised higher than a thousand to two 
thousand feet above the valleys. In canons and small ravines between hills, these 
places are the warmest, and therefore better fitted for vegetables and fruit trees. 

9. Generally all surplus water is wasted, as no care has thus far been taken about 
economizing it, and if a neighbor does not need the waste water, nobody attends to it. 
No regulations are in existence in the State or county about the use of water or waste 
water. 

10. Water available for irrigation is all taken up ; usually by the laws of the State. 

11. The great scarcity of water, occasioned by drought the last two years, has been 
the cause of several lawsuits, the last and present year, in Paradise Valley, Big Mead- 
ows, and Kayoti Creek, near Unionville. 

13. Not practicable. A settler wants always a small portion of agricultural land 
near his house, in a canon, along a spring, &c, which could not be called pastoral. 

14. I think it is to be only partially limited, to prevent speculation on one hand, 
and on the other to enable settlers to have enough land for their stock. 

18. The growth has diminished. 

19. Partially, mostly in valleys. 

21. Rivers, creeks, and springs, both in valleys and mountains. 
23. Has diminished. 

27 L G 



418 PUBLIC LANDS, 

24. Thej do to a certain extent, out sheep destroy the feed and render it unsuitable 
for cattle. 

27. The lack of water for irrigation being the principal cause in the way of increas- 
ing the agricultural industry of this county, any means employed to increase water 
would in crease also the sale of land. Whether this could be effected by the inunda- 
tion of the Colorado Desert, forming an inland sea or lake, and thus increasing the 
humidity of the atmosphere of this county ; or, by a more direct way, by grants of 
land at a reduced price for every success in bringing water to the surface by artesian 
wells, would forward that end very greatly. These grants might, to advantage, limit 
the time. It is probable that success would excite too much speculation. 

28. In places much trouble is found, although few are entirely obliterated. This 
occurrence is in very sandy soil, which drifts by wind. Posts and mounds in the reach 
of cattle are apt to be destroyed. The cattle scratch themselves on the posts and break 
them ; they also tramp down the mound. At times, in a new and unsettled country 
like this, ignorant and malicious men do not respect or take care of survey-posts around 
their own property. Generally, corner posts near an old Indian camp are destroyed ; 
the mound is usually found. 

TIMBER. 

4. There is no timber land (properly so-called) in this county. On some hills scrubby 
cedars or junipers; on higher ranges some mountain mahogany — all in limited quan- 
tities; in callous along the creeks, cotton wood, quaking asp, and willows. In the 
southern part of the county nut-pines, rather small, are found on a range of mount- 
ains, hardly good enough for lumber. All the trees above stated are used for fire- 
wood and farm purposes as timber. 

2. No timber planted. Trees planted about houses and gardens are poplars, cotton- 
wood, locusts, and fruit trees — thus far used more for ornament and shade. 

LODE CLAIMS. 

1. As superintendent of mines in this county ; surveying mine claims for patents, 
and the interior of mines. Have been called as expert in mine litigations. 

2. The mining law, as interpreted -by the Commissioner, is complicated and difficult 
to comply with. It causes great unnecessary expenses in the obtaining of a patent. 
It should be so amended as to give a clear and simple, interpretation. There should 
be a first and preliminary location when a ledge is first found, to allow time to locate in 
a permanent manner, after determining the course. The final location should be made 
by competent persons. It should also require the length of claim to be in the general 
direction of course of ledge ; this to be found by taking a level as near as possible 
on the course. Locator should have the privilege of locating over 300 feet width from 
center of ledge in case the same outcrops beyond 300 feet from the center line of ledge. 
This provision to be only with intention to cover the outcrops by location, and prevent 
outsiders from taking advantage of the circumstance. The claimants of a claim should 
have the privilege to act by attorneys in certifying to papers required and necessary 
in obtaining a patent. 

3. I have not had any case of that kind in my practice as surveyor. I should think it 
better to have such cases decided by courts of justice before filing. 

4. The top or apex is the uppermost part of the ledge between the two walls, although 
these may be missing. Most generally the apex or top can, but the course and dip cannot 
be determined. Blind ledges are those whose top or apex are under solid ground, and 
which have not thus far been exposed to the surface. 

5. They are not. 

6. The law is usually complied with as near as possible with regard to these points. 
In case of a lawsuit advantage is taken of any weak point. 

9. Do not know any wider than 300 feet from center of ledge ; they are sometimes wider 
than district regulations allow. In the latter case the local laws are apt to be modified. 

10. This occurs in outcrops of a ledge whose course is across a hill and dipping in the 
same at a small degree from the horizontal. The outcrops are frequently located and not 
the course of the ledge. If located by the course the outcrops would be found outside of 
the parallelogram of location. 

11. To the disadvantage. 

12. B can put A to cost and inconvenience. I do not know now any case to the point. 

13. Such cases are of frequent occurrence. Blackmailing is not confined to the por- 
tion of the dip which has passed beyond the exterior lines of the surface tract. It would 
be too much labor or expense to try to do that with vortical veins. 

14. I think it possible and also better than a contrary provision, as the original dis- 
coverer, in the last case, may derive but very little benefit from his discovery if his 
ledge is dipping at a small degreo from horizontal, while an outsider, in such a case, 
would havo the lion's share. 



PUBLIC LANDS. 419 

16. After a ledge is found, as soon as the discoverer gets an idea of the course, dip, 
and value of his ledge, say in two or three days (but if an excitement is existing in the 
district he is apt to locate immediately), he places a notice and monument to start 
from, and very indefinitely states the course of claim located. A copy of the location 
he takes to the district recorder, who records it and measures the claim a few days 
after, according to the laws of the district, placing the corner monuments, as stated 
by location, as near as he can by a pocket-compass, or, in absence of it, by guess- 
work. This proceeding is subject to many imperfections, and when the location turns 
out valuable ground the want of conforming to the laws of the United States creates 
much trouble, inconvenience, blackmailing, and resulting in very serious litigations, 
and. not unfrequently the loss of the clairn to the original discoverer. 

17. It cannot be amended, if other claims have been located along the same, except 
by consent of subsequent locators. 

19. I think, with precautionary measures, mining district laws could be advantage- 
ously abolished as to future locations, provided the United States land offices for 
mining claims be placed in more centers than at present for public lands. 

22. Ought to be limitation — say five or six years. 

PLACER CLAIMS. 

1. Small gulch placer claims exist in this county ; thus far no effort has been made 
to procure title for them. 



Testimony of B. C. Whitman, of Virginia City, Nev. 

B. C. Whitman, of Virginia City, Nev., testified at San Francisco, Cal., October 11, 
1379, as follows : 

I have been familiar with the mining laws of the United States for fifteen years as 
an attorney, confining my business almost entirely to the mining corporations. I 
think the present mode of initiating titles with the mining recorders is probably sat- 
isfactory, but the method that is primarily used in mining districts is very uncertain 
and unreliable. At the present time mining records are of record in the county re- 
corder's office, and are just like any other titles. I speak of Nevada only, as I do not 
know anything about any other State. The original notices are drawn by ignorant 
prospectors, and frequently by persons who find it somewhat difficult to write the 
English language, and indefiniteness of description arises on account of their ignor- 
ance. At the present time we are acting under no especial mining district laws, but 
the mining notices are filed as prescribed by the laws of the United States, and are 
filed in the county recorders' offices and there recorded. The original locations of the 
Comstock were filed in separate mining districts ; one in Gold Hill, and another in 
another place. All these notices have been transcribed, and the originals have been 
held in the office of the county recorders. These were originally drawn by the claim- 
ants themselves, with a great indefiniteness of description and date. You would see 
" recorded this day," and there would be no date. It was posted on the claim and filed 
with the local mining recorder. There was no security for the integrity of the records 
in the hands of the mining recorder. Those records will show the very great careless- 
ness with which the business was done. For instance, in the notice of the Miller 
grant, as it is called, at least one-third of the names that were originally written upon 
the notice have been scratched out and other names substituted; properly enough, be- 
cause the names of most of his friends were written there, and as those friends cad not 
come to time he would scratch out their names and insert others. He used the names 
of his friends to take up a number of additional feet. 

The Miller claim as originally located was 3,600 feet. The district law then allowed 
300 feet for each locator, and it in terms restricted a man to about so much, but in 
fact a man located as many feet as he pleased by using the names of other parties, 
and often without their previous knowledge, and then he would go to them and have 
them deed to him what he had located for them. Locations are often made in that 
way, and then deeds taken by the original locator from the others. Locations are 
now ordinarily made in the name of one person, because he can now take 1,500 feet. 

The county recorder is under the same responsibility for copying mining titles as he 
is for copying all other records. He is elected by the people and gives bonds to the 
State, and is the custodian of the records of the county. A certified copy of his rec- 
ord is the basis of title. If he sends a false certificate he could be punished under 
the statutory law for falsifying his records, because it is under the State law that he 
is made the custodian of those records. The mining law allows this notice to be 
recorded, and if an error, intentional or otherwise, were committed in the certified 
copy, I do not know whether that would make him amenable under State law or 
not. I think the initiation of the law ought to be in the United States in the first 



420 PUBLIC LANDS. 

instance. As long as they keep control of this land they should have control and 
disposition of it from the beginning to the end. 

The present system is anomalous and burdensome. The location and size of the 
claim should be regulated by the United States. If the United States has supreme 
control, it should either exercise it or give up the control of the land. I think it ad- 
visab]e to require a miner to commence with au official survey wherever it can be 
done. I think the law ought to prescribe that the survey should be made within a 
certain time after the location has been made. I do not think it would be burden- 
some, because the surveyor generally accompanies the prospector or follows closely 
after him. He follows there for custom. It is seldom, if ever, the case that a man 
cannot have his claim surveyed within thirty days after his discovery. The difficul- 
ties would be obviated by allowing him, in proper form, to locate his claim upon the 
surface and posting his notice thereon, and then allow hira to file his notice with the 
surveyor, permitting him to ask for a survey, and that survey dating from the date of 
his application. I think sixty days at the outside would be sufficient time in which 
to have him apjjly for a survey. My personal opinion is that no surveyor ought to be 
allowed to make a survey over an overlapping claim. It is not infrequently the case 
that a claim which has been located, so far as you can gather from the notice of the 
discovery, and so far as you can gather from the oral proof, runs in a northerly or 
southerly direction, but when the United States surveyor is called upon to locate it 
the claim has swung around into an easterly and westerly direction. 

It is very difficult to see the true direction of a claim, because parol testimony is 
becoming extinct in old mining districts. It is very expensive, too, for witnesses know 
their importance and charge very high fees for testifying. 

There is a great deal of trouble arising from claims being swung around and their 
direction changed, and the only way of overcoming it is by the original location and 
the testimony of the work which the parties have done. 

Parol proof in a mining camp is not very difficult to obtain. The witnesses in our 
district would stand very favorably, because they have testified often, and we can tell 
pretty well whether they are telling the truth or not. 

Question. Do you think it well to require the discovery of a lode before location is 
admitted? — Answer. No, sir; I do not understand the object of such a provision of 
law. Sometimes valuable mines after they have been found are blind lodes. Crop- 
pings on the surface of a country are false indications in the value of lodes. There 
are many transformations which affect the croppings, but do not affect the ledge 
underneath. I think if a man has made his location and is willing to go on and work 
it, that he should be entitled to whatever is within his lines. I think the government 
should provide a different style of location from what they have now. My theory is 
that a better system of location should be adopted for every mining region, but I know 
nothing about the expense that would attend it. The Comstock is a square location, 
with vertical side lines. The' advantages of that location would be, in the first place, 
to prevent a great deal of litigation that follows when two or more ledges unite, and 
there is no division of them afterward. Nearly all our mining litigation arises from 
this cause, and experts are very apt to take sanguine views of the ledges of their 
respective patrons. They become interested in the case, and I have known jurors to 
decide upon a case where the ledge was no thicker than a knife blade. I have also 
known them to reject where the lode was very thick. The Comstock ledge is now 
looked upon as the centering of deposits from all the croppings from a mile around. 

Q. Is not a certain line of claims recognized as being the Comstock lode, and is there 
not in front of those recognized as being on the lode a multiplicity of other locations ? — 
A. Yes, sir ; and the result is that parties having no lodes on their own grounds strike 
the dip of those other lodes, and set up adverse claims. It is possible under the pres- 
ent law when a man has located a valuable lode for any other party to sink merely 
for the purpose of striking the dip of that lode. In such a case as that difficulties 
must necessarily occur. There is that kind of trouble now in the Comstock district. 
The Chollar Potosi had the Custer location ; the Julia has the patent for its grant, and 
has extensive works. The land office refused to entertain a protest of the Chollar Com- 
pany, saying so far as could be ascertained the Julia lode was a distinct body of ore ; 
but if the Chollar Company ever in their workings proved the connection between the 
two lodes, then it would pass to the Chollar and its location, so that if it is proved to 
be the Custer lode, the Julia patent would be voided. In our State courts such cases 
are frequently passed upon by experts ; in some form or other by the testimony of ex- 
perts as to the theory of location or otherwise. They must satisfy the jury of the con- 
nection between those two locations. It is only a question between a practical loca- 
tion and a theoretical location. 

Q. What size would you have a square location? — A. I think the square location 
should bo 1,500 feet square; that would be a lair allowance. They give now 1,500 
feet in length, with a surface ground of :><><> feel on each side of the lode. I think if 
they give a man 1,500 feet square he will have a mine if there are any mines in the 
disi'rict; but I would have all local laws conform to United Suites laws. Thereshould 



PUBLIC LANDS. 421 

be no interference between the two. I think the square location would have no in- 
jurious effect upon deep mining ; on the contrary, I think it would improve it, have a 
good effect, always provided that ilie United States survey and fix the monuments. 
A man could go in there then feeling that he owned that piece of ground, audi think 
every prospector would be willing to avail himself of that and go to work on that sup- 
position. The history so far as I know of every mine and mining company is contin- 
ued litigation and expense by adverse locations. With a square location there could 
be no litigation. Mining men would be more willing to invest in a square location 
than they would in what w r e call ledge locations. 

Q. Would parties be willing to develop the mines, with a possibility of getting out- 
side of their location ? — A. I think parties would undertake to mine with the possibil- 
ity of working outside their lodes. They would at least have a right to the ore de- 
posit as it is, any way. I have no fixed opinion about the size of a mine ; it might 
be made larger. Of course I understand that that system of square location would not 
be satisfactory for a ledge like the Comstock lode, or a lode of that width ; but it is 
impossible to have a sliding scale of location. You must have some absolute rule, and 
I am inclined to think that an absolute rule of square location would be more satis- 
factory than any other. The locators on the Comstock lode have been obliged to liti- 
gate, and they will have to go on litigating. That was the great question in the cele- 
brated Eureka case. They claimed that they were on a great lode, and, anywhere 
within the end lines, had a right to follow that lode. They defined the mining word 
" lode," accepting the miners' idea of it. There were several patents in that case, and 
they didn't settle anything at all. The patent for the square location settles some- 
thing absolutely. In the event of the square location being made, my idea is that a 
party shall have from the surface down to the nethermost depths. If he finds a de- 
posit of ore he is fortunate ; if he does not find it he is in bad luck ; but he should not 
go outside of his lines. Within his end and side lines he is entitled to everything. 
Each man would then understand just what he has got. Of course there would be a . 
great deal of digging around underneath, but that would be simply a matter of tres- 
passing. I would allow another party to locate on the next claim, and to go down to 
any depth to find a dip of the ore if he wanted to. I am not a practical miner, but I 
have talked with many men who are, and that is their idea about it. 

In mining districts you frequently will find small lodes running parallel to each 
other, and I think a man should have everything he finds inside his location. They 
take the whole district now in Bodie. There are supposed to be half a dozen lodes. 
No one of these lodes is wide enough to warrant anybody in exploring it. Then from 
the dip of these lodes it appears that some of them may combine, so that they have 
been obliged, in order to protect themselves, to locate half a dozen lodes for the pur- 
pose of getting one mine, and, as they are distinct ledges and one man located them, 
this causes confusion of title. There was a case in one of the Nevada districts where 
they had located two or three different claims. An adverse location having been made 
there, that matter came up for decision and a very important question arose : whether 
the work done upon one of these claims applied to all of them ; the court holding that 
it did, because ifc was all taken up to make one mine. The adverse claimants argued 
that one of these locations had been abandoned, because the legal amount of work had 
not been done upon it. It seems to me if the square location had been applied to the 
Comstock lode it would have been better. In the event of the square-location system 
being adopted, you would have to repeal the tunnel law r . I do not see but that, under 
the present law, when a party locates a tunnel another party has a perfect right to go 
and locate a claim of 1,500 feet over the tunnel, but before the tunnel discovers any- 
thing ; and I understand the rule of the Land Office to be this — that the party running 
the tunnel is entitled to locate 1,500 feet upon any ledge that he may discover in his 
developing, but the width of the location shall not exceed that of his tunnel, if no- 
body subsequent to his location gets outside of the lines of his tunnel and makes a 
previous discovery of a "blind lode." 

Q. You say that they may make a previous discovery ; that is, make this discovery 
on the surface before he has made one underneath ? — A. What I mean is this : A starts 
a tunnel ; that tunnel is ten feet wide, and he is prosecuting work on the tunnel. B 
comes here and sinks a shaft and finds a lode and locates it, and A strikes the same lode 
in his development : then B takes the lode. As most of the tunnels are very expen- 
sive, that renders the tunnel law practically ineffective for the purpose of prospecting. 
There are a great many instances of this at Bodie. I have never known anybody to 
discover anything, except in one or two cases where they claim to have discovered 
lodes by means of tunnels ; I never knew any lodes actually worked that were discov- 
ered by tunnels except in those instances at Bodie. The tunnelers claim to have dis- 
covered a valuable lode to which there is no outcrop and upon which they have located 
a claim of fifteen hundred feet, to which they are entitled. In regard to the two or three 
other so-called discoveries, there is more or less litigation. In the event of the square 
location there would be no necessity for the tunnels ; the square location is supposed 
to give a man just what there is in his claim, and nobody would be allowed to go in 



422 PUBLIC LANDS. 

on him. I think the tunnel law has been an advantageous law in California for the 
purpose of discovering old river-beds, but if a person had a square location he would 
have a right to run a tunnel in that, if that were the easiest way to get to his ore, if 
he did not interfere with anybody else's rights. There would be no need for the tunnel 
law to enable him to take up a mineral claim. 

Q. Suppose the law provided for square location and the title initiated in the form 
you have indicated, would you require the proving up on the title within a certain 
length of time ? — A. I think the limit of time within which to prove up should be 
increased, and I think the party should be compelled to get the title from the govern- 
ment, and all merely possessory titles should be extinguished. One year, I should 
think, is sufficient time for proving up, and at the expiration of that time a man 
should be merely required to establish that he had made his location in accordance 
with the provisions of the statute, and that he had done the work upon the claim as 
required by law. Under the present law there is no proving other than the location 
of the party and certificate of the deputy surveyor ; and while these gentlemen are 
generally very accurate about it, of course there are cases where they are mistaken, 

Q. Would you have the law specify what the character of the improvements should 
be ? — A. I think not, sir, except that the character of the improvements should be 
actual work or actual expenditure conducing to the development of the mine. I believe 
that the courts have decided that buying machinery is an expenditure, and I do not 
see why that should not be accepted as such. 

All over this country claims have been abandoned absolutely and nothing done upon 
them for years. Eventually some enterprising person comes in and makes some dis- 
covery, and then the old locator comes back, and they can almost always succeed in 
getting a case sufficiently strong to bring about a compromise. Now, if a party is 
compelled within one year to make his application for title, and a strict forfeiture is 
provided for non-compliance with the law, it would do more to improve the country 
than anything else. That forfeiture should be merely a cancellation of all rights, and 
abandonment should be conclusive proof. The law should provide for the extinguish- 
ment of possessory rights of all parties to the land. The old possessory claims should 
be placed upon the same footing, so that in course of time there would be some common 
law in operation. 

I think the mill-site privilege should be continued, because the square location might 
not be a very convenient location for the mill-site. I do not think that there is any 
necessity for a party to make proof that he has got a mill or intends putting up one. 
Let him make his application, and then the government might agree to give him an 
absolute title upon proof that he had commenced and progressed to a certain extent 
with the work. 

I do not know that any mill-sites have been taken up for the timber or other values 
to be obtained from them ; that is, from the land. All the saw-mill sites I have known 
to be taken up have been for actual use. I do not think there is any necessity for a 
law restricting the distance of mill-sites from the mines. It might depend upon many 
contingencies as to where the mill-sites should be put. For mines that are down on 
the Carson Eiver they used a mill down on the Washoe ; it must have been 50 miles 
from the mill to the mine in that day. Of course no man is going to claim a mill in 
any district that is practically too far off from his mine. In Eastern Nevada there are 
places where they haul 30 or 40 miles to the mill, and it has always been a question 
whether it was cheaper to haul ore to the mill or water to the mine. 

Q. In the event of mill-sites being continued, should the restriction of the non-min- 
eral land be continued ? — A. That is a question which requires a good deal of thought. 
I should be inclined to think that there is no necessity for any of those provisions in 
regard to the classes of mineral or non-mineral land. Practically, if the simple pro- 
vision that is placed upon each patent is carried out, I think surface locations need 
not conflict with mining locations. There is a great deal of surface land that is in 
neither class, since part of it is mineral and part non-mineral land. It should be used 
for surface purposes. 1 do not see any particular reason for drawing a distinction 
between mineral and non-mineral in districting. There have been a few instances 
where mines have interfered with the possession of the surface. There was one iu the 
case of the Chollar mine. Their location was prior to the location made by parties on 
the surface, and the mine coming up near the surface, the occupant of the land was 
ordered to move ; but he did not do so, and his store dropped down into the depths 
one night. This is the only case I have known where the rights conflicted. 

Q. Would you reserve the subterranean rights ?— A. The sale of one thing should 
not include another; the sale of the surface should not include subterranean rights. 
I think if a man bought the timber land, and if he wanted to make a mineral location, 
he ought to be compelled to make another location. As the case stands, I see no rea- 
son why the two should go together; why the surface rights and subterranean rights 
should not be sold separately. 

Q. Should not the publication of the objection provided by law to the mineral ap- 
plication .be conclusive upon the government as to the right of the applicant t — A. 



PUBLIC LANDS. 423 

Tlie present system is exceedingly onerous to the applicant. In the first place, they 
require an abstract of title ; that costs sometimes thousands of dollars to obtain, be- 
sides taking a great deal of unnecessary time. That abstract of title may, under the 
present system of the Land Office, be of some use, but there are other cases where it 
is not of any use ; that is, in the case of contested patents ; he has to furnish an abstract 
of title that can never be of any use, and after this abstract is furnished the office 
frequently refers the whole thing to the Statc*courts, and the State courts decide upon 
the title between the two. The proof must be made over again. This lies in the- 
archives of the Land Office, and I cannot see that it is of any use. In many cases it 
is absolutely impossible to get an abstract. In early days they made that transfer by 
putting a party in place on the ground. The courts have held that to be as good a 
title as if a man had a paper title. It is frequently the case that when abstracts come 
up they are necessarily incomplete, because it is impossible to make them complete^ 
and it seems to me that the application is always necessarily between the Government 
of the United States and the applicant, and it should be conclusive as to the inten- 
tion of the applicant. He is obliged to go into the State court, and the judgment of 
that court is conclusive in the Land Office, The Land Office looks into it in the first 
place merely to see that it is a prima- facie case. 

Q. How would such a provision as that of section 15 of the act of March 3, 1851, 
do I — A. I. think some provision of that kind would be effective. 

Q. Do you think that it would be wise to invest the executive officers with a larger 
jurisdiction as to the prima-facic validity of the adverse claim than they now enjoy? — 
A. A man makes an objection under oath, and I think that is enough. I am inclined 
to think that is as well as we could have it. He makes his objection under oath, and 
he has to file his abstract of title with his objection. I do not see any reason for 
filing that abstract of title. My idea is that if he makes his proper sworn averment 
that should be sufficient, in view of the fact that he has, after a certain time, to prose- 
cute that averment. If he does not prosecute that averment with reasonable diligence, 
I think this matter should be left with the courts where the case is tried. I think it 
is right to leave it there for the action of the court if it is not prosecuted with reason- 
able diligence, and I do not think any other person ought to be allowed to interfere 
with it. It is hard to say what reasonable diligence is, and the court is the proper 
tribunal to decide it. 

Q. In your judgment, should the conveying of mineral transfers be with the execu- 
tive officers the same as with all other land cases ?— A. I cannot see any reason for 
making a distinction. I never could understand why they should inject this question 
of courts into a proceeding which after all does not involve any questions of law, and 
which is an administrative proceeding. They are simply questions of facts, to which 
there can be very little objection under proper statutes. Taking them up to a court 
tends to additional expense and delay without producing any good or economical 
results. The question comes up about location, and one court will hold parties to a 
strict compliance with the statutes, while another court will hold that anything which 
indicates the desire of the party to make a location is substantial compliance. If 
these matters were before the Land Office, there would be a ruling, and there could not 
be a very great conflict of opinion, because it ultimately comes before the supreme 
power of the Land Office. I think it would be a much better system and a saving of 
expense to have the whole question from the inception of title to the end go directly 
through the Land Office, as all other land cases do, and that the patent, when issued, 
should, be conclusive upon the question of fact. Of course, it would also cover many 
questions of law. The patent should show that the applicant had done everything he 
was required to do in order to get a patent title from the United States. 

There is another thing ; it has been decided by the Commissioner of the General 
Land Office that under the present statute a man may make more than one location 
upon the same lode. It was decided in reference to the iron mines of Colorado. That 
decision has beep made, but whether it is to be a decision without contest I do not 
know ; but it seems to me that if that statute is altered, it should exclude the party 
from making more than one location upon a lode. It may be that this is a proper de- 
cision under the present language of the statute, and I think that result ought to be 
prevented by putting in an enactive word. I would give a party but one right of 
pre-emption in mining cases, the same as is now done in agricultural land cases. The 
government gives a party a certain right, and it does not intend that he should hog 
everything. My recollection is that that decision was made four years ago. The de- 
cision goes on to say that the statutes of the United States do not prohibit a person 
from making more than one location upon the same lode ; therefore, if it does not pro- 
hibit him from making more than one, he may make fifty if he may make more than 
one. 

Q. Do you not think that a more perfect system of surveying of mineral claims could 
be adopted ? — A. I cannot answer that ; I am not sufficiently a practical surveyor. 

Q. Does the present system lead to great uncertainty ? — A. It would ultimately, but 
it does not now because live witnesses are at hand. I think it would be well if the 



424 PUBLIC LANDS. 

mines could be located with absolute certainty. Frequently the second owner cannot 
find the corners, even if he went to the surveyor who first laid out the ground; and 
the chances are that the present surveyor would miss it a little, and in case of contro- 
versy it would cause trouble. 

Q. Suppose that a party takes up a square location with a dip running off in a cer- 
tain direction, and then that dip turns and runs out the other way ; what would be 
the situation ? — A. The situation would be pretty bad, but I do not think it would be 
any worse than the situation is now. I think the individual miner and prospector 
would be safer. He might occasionally lose his lode, but I think the individual loss 
would be overbalanced by the public gain. 

I have a proposition I want to suggest. In the State of Nevada I know, as a matter 
of fact, that parties have necessarily, not through any fraudulent intent, cut timber 
upon the lands of the United States. I presume there are a great many instances 
where it has been fraudulently done, but you cannot distinguish between the two. I 
think it would be no more than fair to provide that where lands have been denuded of 
their timber (in the States of California and Nevada at any rate) that if the parties 
who had committed the act, either by themselves or by their agents, should come for- 
ward within a reasonable length of time and pay $2.50 per acre, as a matter of indem- 
nification, they should be released from any action ; but they do not want, of course, 
to be liable to subsequent action for the recovery of damages. It seems to me it 
would be very well to have the statute perfectly clear upon that subject. It would 
give parties a right to clear themselves from any criminal and civil proceedings by 
paying to the United States what it asked in the first place. 

In Nevada the wood was not cut for export, but for actual necessities in carrying 
on the business of the country. It has been burned in furnaces, and a great deal of 
it is under ground. It has been used for the purpose of development and improvement. 
If a man cut and sold it and made something out of it, and if he now paid the govern- 
ment all that he would have been required to pay in the first instance, I think the 
government has got all it could ask. Under the rulings of the Attorney- General, after 
a party comes forward and pays $2.50 per acre, this is simply a payment of the pen- 
alty, and the government is entirely at liberty to follow the lumber and take it wher- 
ever it can be found. I understand, further, that they claim the right to sue, in addi- 
tion, for damages. I do not know, then, what the payment of this $2.50 is for. I do 
not think the Attorney-General very clearly understands what it is* for, either. 

Q. "Would it not be better, instead, to make a law whereby these parties could pro- 
cure this timber either with or without sale, and without committing trespass ? — A. 
Undoubtedly. There are many cases where the trespasses have been necessarily com- 
mitted from time to time. For instance, the State owns certain lands ; application is 
made, and the State authorities say we cannot sell the land because they have not been 
surveyed, and they cannot be taken up ; or the party goes over to another tract of 
land. Many of these trespasses have been committed by agents without any under- 
standing on the part of the ririncipals. The agent is put upon the proper piece of 
land and told to cut on that land; and all at once it is discovered that he is cutting 
timber upon another piece of land. His employer finds it out, and it is claimed that 
he can be held responsible for it, and I presume he can. I refer to past trespasses. 
The parties ought to have the privilege of offering to pay $2.50 per acre for stumpage, 
and all criminal j)roceedings stopped. If that was a fair price originally it should be 
a fair price now. 



Testimony of Harvey Carpenter, receiver, and James McMartin, register. United States land 

office, Eureka, Nev. 

Eureka, Nev., November 3, 1879. 

Harvey Carpenter, receiver, and James McMartin, register, made the following 
statement : 

Papers in the land office should be reduced in number ; all tees .should be abolished, 
and registers and receivers should be salaried. 

Eureka is a mineral district. AH mineral district recorders should be abolished and 
claims filed in the United States district land office. All mining contests should be 
tried before the United States district land officers. 

Registers should have a seal, and should be authorized to subpoena witnesses to 
testily in land matters : as it is now many rights are lost because witnesses refuse to 
testify. Registers should also be authorized to perpetuate testimony. There should 
be a provision of law that settlers in final entries Bhould be permitted to make their 
final proof, on forms, before a district or county judge. 

This district is enormous; embracing the comities of Lincoln, Nye, "White Pine, 
Eureka, Elko, Lander, and part of Humboldt. It traverses the entire length of the 



PUBLIC LANDS. • 425 

State and is 200 miles wide, so that settlers, either in contests or in making final 
proofs, bringing witnesses from extreme ends of the district are compelled to go to 
greater expense than the lands cost in the land office. This is a great evil ; registers 
and receivers should be authorized, when proof has been taken in contests, or aban- 
donments of homesteads or declaratory statements, to at once, upon the reporting of 
such cases to Washington, admit filings for legal settlers. While the report is pend- 
ing at Washington, which is frequently a year, troubles inveigh, and fights take place 
over the land. 

I see no reason why a person should not be permitted to file as many declaratory 
statements or homestead applications as he likes, as there is nothing in the present law 
to prevent it. It is only a ruling. Every time a person files a declaratory statement 
or homestead on a piece of land the value of it is thereby enhanced, and an incoming 
settler gets the benefit of his improvements. It takes entirely too long at present to 
get a patent, and registers and receivers should have more authority. 

We believe in the rectangular system of surveys, as all understand it. Settlers com- 
plain of the absence of stakes ; they rot and are torn down, and the mounds and pits 
become obliterated. Stakes are frequently moved by settlers for illegal purposes. In 
a cattle country like this cattle rub against the stakes and paw the mounds down. 
The settlers in many cases have to hire surveyors and go to great expense to find the 
boundaries of their land. There should be some permanent system of monuments es- 
tablished, say at the corners of townships. It is almost impossible after five years to 
find a stake or mound. Triangulation to such isolated tracts of farming lands could 
be introduced to great advantage. 

There is some agricultural land in this district — say one acre to a hundred — and 
there irrigation is necessary. The water in the district, which proceeds from springs, 
streams, and snow, is all taken up either by cattle or irrigation. In this district it is 
all pasturage land except this bit of agricultural. 

It takes from 30 to 40 acres of land to sustain a beef. This district is overstocked, 
and the grasses are diminishing 

We believe in a pastoral homestead, say of 3,000 acres, on the arid lands of the dis- 
trict, leaving the present settlement laws in effect on lands which can be irrigated. 
Our water- right laws are under State law, and decisions of our district court give the 
first right to use of the water to the first locator, to do as he pleases with it. This 
gives him control of all the lands for agricultural purposes in his section. 

No laws affecting the arid lands, either their sale or disposition, should be passed 
which will interfere with or injure present herds of cattle and sheep in this section. 
The actual occupants at present on the ranges by local custom should be permitted to 
permanently occupy them, either by purchase or permit from the United States Gov- 
ernment, and be protected in their right to them. These lands should be surveyed and 
preserved for cattle ranges. 

We think the best interests of the government and occupant would be subserved by 
the survey and salt- of these arid pasturage lands. They should be sold in quantities 
on the basis of thirty acres to sustain a beef, and first to the present occupants of 
land, who could establish by oath before the register and receiver the number of cattle 
and sheep held by them at the date of the passage of the act. We think 10 cents per 
acre ample for them. Five sheep count as against one beef for grazing. One hun- 
dred cattle would sustain a family. 

There are many contentions between sheep and cattle men about sheep going on cat- 
tle lands, they claiming that cattle will not graze on the lands grazed on by sheep. 
The government should at once settle all these matters as to the sale of lands, &c, for 
the sake of peace and quietness and to prevent further trouble. There have already 
been some men killed, others wounded, in controversies growing out of the sheep and 
cattle question. Giving each stockman the right to a specific range would do away 
with all this trouble. There is no lumber timber in this district properly speaking, what 
there is being only fit for fuel and charcoal and mining purposes. No timber has been 
planted here. The entire control of the timber lands of the United States should be 
put in the hands of the United States district, land officers. In this district any person 
who wants the timber takes it. A man will go into the timber, build a fence around 
a large quantity, perhaps miles square, and by local law such an inclosure holds it. 
They post a notice upon it and record the claim in the county recorder's office. The 
timber that yet remains should be surveyed and sold to any applicant in unlimited 
quantities. The charcoal made from this scrub timber is indispensable for smelting. 
It is generally made by Italians and Swiss. There are estimated to be 3,000 Swiss and 
Italians engaged in this business within a radius of 40 miles of this town. They cut 
all the timber clean. The government should sell the timber free from the land. Pros- 
ecution for timber depredations as laws are now is impossible. The timber is mostly 
composed of very small nut-pine, piiion, and juniper, and is of no value for building 
purposes. 

There should be some improvement in the description made by deputy surveyors of 
the topography of the country, and they should be required to take altitudes. Much 
land is now marked non-mineral which is mineral, and vice versa. 



426 PUBLIC LANDS. 

The present notice of intention to prove up is vexatious- and useless and should be 
discontinued. The requiring of thirty days' publication has worked great pecuniary 
loss to settlers and prevents no fraud. Men who file on mining claims should be re- 
quired to prove up and get title in one or two years at the furthest. 

We have but G to 8 inches rain and snow fall in this entire district. 

The desert -land act permits location on unsurveyed lands. The settlers should be 
Compelled to give more accurate descriptions than now of their claims, so as to prevent 
them from moving around on the land. 

We consider this a mineral and grazing State. Agriculture is only possible by rec- 
lamation of the land through irrigation. Where there is no water there can be no 
agriculture, and the land is "already irrigated to the full capacity of the water supply. 
Our people utilize their water with great care. Eeservoirs are practically useless be- 
cause of the great evaporation, which is about one inch a day. 

In contests for declaring vacant lands under the pre-emption and homestead laws, 
the person who brings the contest and has to pay for it should, being a legal settler 
and occupying the land, be protected by the government and have the first opportunity 
to get the land when it is restored to settlement. This is not the rule now. 



Testimony of E. S. Clark, surveyor-general of Nevada. 

E. S. Clark, surveyor-general of Nevada, testified as follows : 

I have been surveyor-general of the State for ten years. I am in favor of the reten- 
tion of the present system of rectangular surveys of the lands of the United States. 
The system is well known to every settler, and they can find, with ease, the location of 
their lands. 

Some system of permanent monuments should be established by the government at 
the intersection of townships. The wooden stakes are destroyed, some are burnt for 
fire-wood, and others rot away. Where cattle run over fchem neither mounds nor stakes 
last. 

The deputy surveyors do not get enough pay for their work at present; the old prices 
of four years ago should be restored, as fair pay gets good work. I think there should 
be an inspection of surveys under contract, to be paid for by the government. I favor 
the retention of the contract system for convenience ; a paid corps of surveyors would 
be a great expense. All my deputies use the solar compass. I think a great improve- 
ment could be made in the method of the description of the lands by deputy surveyors 
(in fact, a classification of the lands, taking the height of streams as the level of possi- 
ble irrigation , by following the stream in the several townships and giving its eleva- 
tion) by the government furnishing aneroid barometers or other instruments to ascer- 
tain elevations. It would not add much labor to the work of the deputy and would 
be a guide for the district land officers in the disposition of public lands. We do not sur- 
vey anything but arable lands, and there is a great deal yet unsurveyed. The fees in 
mineral surveys are not, in my judgment, too high. Here we charge $30 for office 
work. 

The timber land should be surveyed and sold. I would sell it in unlimited quanti- 
ties. Private ownership would be the best protection for the timber. A homestead 
or pre-emption filing should not be allowed on the timber lands of the Sierras, as men 
will cut the timber and then abandon it ; these lauds should be graded in price accord- 
ing to the quality of the timber. 

The United States district land office should be given jurisdiction over, and control 
of, the timber lands for the purpose of uniformity. 

I think applications for location of mining claims should be filed in the United States 
district land office, and all local mining districts abolished. I think mining claimants 
should be compelled to pay up for the lands and get title. 

I would not survey or molest in any way the arid lands of the State. I would let 
them be used in common by herds of sheep and cattle, under a system of comity an 
now established among themselves. 

I call this State a mining and grazing State. Agriculture, solely by irrigation, is an 
incident. We have grass on the high lauds — generally bunch-grass; in the large val- 
ley, white sage ; all good for cattle, who don't touch it until the frost comes and 
sweetens it ; then the farmer calls it winter food. The water privileges in this State 
are pretty nearly all taken up. Parties make application to this office for survey of 
their claims ; tlie surveys are ordered and are made : the papers are filed in this office 
on return and approved ; some are here that were made four or live years ago. Some 
law should be passed or rule made forcing these people to make appearance in a rea- 
sonable time to the district officers and make payment for their claims. 

There should be a law passed prohibiting a surveyor-general from ordering a deputy 



PUBLIC LANDS 427 

surveyor, on application of a claimant, to make a duplicate survey of the same mineral 
ground when it has once been abandoned. 

In this State when a mineral claim overlaps another previously surveyed, the dep- 
uty surveyor in his field-notes excludes the surplus ground, and the conflict is shown 
by metes and bounds the same as a regular survey. 

Our incidental expenses of this office are very large and irregular ; we should have 
$3,000 per year for incidentals ; we used to have, four years ago, $4,000. The salaries 
of this office are too low ; they should be increased to the same as the California office, 
as living is twice as high here as in California. 

I think fees should be abolished in all matters between the public and the lands 
and fixed salaries be paid the officers. 



Testimony of Capt. T. C. Ford, Virginia City, Nev. 

Virginia City, Nev., November 1, 1879. 
Capt. T. C. Ford, collector of internal revenue, testified as follows : 
I have been connected with the Internal Revenue Department for eleven years, and 
know the State of Nevada pretty well. I- consider this State a mining camp and a 
mining and grazing State. Agriculture is a mere incident here, and then only with 
irrigation. I do not favor any survey and disposition of the arid lands of this State 
for the next twenty years, because the lands would fall into the hands of monopolists. 
In my opinion it is impossible to segregate the arid from the irrigable lands. I hear 
of no trouble nor agitation on this point among our cattle and sheep men. 

I would survey and sell the timber lands. The government should get as much for 
the timber lands as private persons and corporations. I would not limit the quantity 
that should be sold to an individual. 



Testimony of I. E, James, Virginia City, Nev. 

I. E. James, civil and mining engineer, of Virginia City, made the following state- 
ment : 

Have been twenty years on the Comstock Lode, and have done most all the under- 
ground work on the Comstock up to two years ago. The present United States min- 
ing law is a pretty good law, except that parties have been permitted to locate non- 
mineral lands as mining land, to the detriment of actual miners. No person should be 
permitted to locate a claim unless they have mineral. Exploration should be free 
and permitted on all mineral lands, but no location should be allowed without a party 
having struck mineral in the place. Under the present law a 'man "may locate a claim 
600 by 1,500 feet and hold it against a person who is actually in use of it. Frequently 
men are compelled to locate mining grounds around their shafts, knowing them not to 
be mineral, and hold them by doing the work required bylaw — $100 per annum—so as 
to keep them from being located by other parties. At Yellow Jacket shaft, which is 
2,500 feet east of the apex of the Jacket ledge, the company were compelled to buy 
at a high price a mining location which should never have been permitted to have 
been made, because there was no mineral upon it, and, to get ground enough for their 
dump and works, were compelled to purchase another claim, on which claim the com- 
pany are compelled to do $100 worth of work per annum to hold it. Otherwise it 
would be relocated for no other purpose but to extort money (blackmail) from the 
company ; so no location of a mining lode should be allowed except where mineral is 
in place. The same thing occurred at the east shaft of the Overman, and cost the 
company a great deal of money. A good mine results in blackmailing suits and 
jumpers. 

I think all mining claims should be recorded in the United States district land office 
for safety for title, provided convenience be made for miners at a distance, at present 
on record in the county recorder's office, where the title is kept. 

The time required now to get mineral patents is too long. There have been delays 
in mining patents before the department uncalled for. I know of the case of a man 
who made application for a patent to the department. The papers were duly for- 
warded by the local officers some four years ago. In answer to several letters to 
the care of the Land Office he received a note from an attorney at Washington say- 
ing that if he would send a certain sum of money to him he would get his patent. 
He refused, and when Schurz came in he wrote him, and soon got the patent. 



428 PUBLIC LANDS. 

A man should not be compelled to pay up in a given time for his mining claim. In 
many cases men are too poor to get a patent for their mining lands. 

The proposition for the location of mineral claims in squares I have not considered. 

I think the timber lands adjacent to the mines should be sold in unlimited quan- 
tities and the price graded. Timber should be sold separate from the land. There 
is some destruction of timber by fires, but a small amount, however. Men who own 
the timber lands are very careful of them. It is absolutely impossible to mine with- 
out timber. The timber lands of the United States should be placed under the con- 
trol of the United States district land officers. If the timber lands are not sold, per- 
sons should be licensed to cut it by the district officers. Lands which are known . 
here as timber lands are taken soleiy for the timber. The land in some cases con- 
tains mineral, and is valuable to the government for mineral purposes. 

The tunnel act of the United States is very absurd, and the law, as interpreted by 
the Land Office and in California courts, means simply a right to the width of the 
face of the tunnel. The law is of but little use as it now is. 

When I first came on the Comstock, in 1860, wood was $16 per cord. Lumber, 
square timber and all, was $23 to $25 per thousand. This was after the mills were 
built. The railroads and flumes since then reduced cord-wood to $10.50 and timber 
and lumber $17.50 delivered. 

The mining law now requires that a man shall maintain conspicuous monuments at 
the corners of his claim. This is now sufficient. 

There is no definite width to the Comstock lode ; you may say it is from 300 to 700 
feet wide. The foot-wall of the Comstock lode is well defined. The true hanging 
wall is broken and is not well defined. 

In regard to locations of mines the law requires that the ends of all locations shall 
be parallel. This is well enough, except where two adjoining claims may be located 
with diverging or converging lines. In case the lines are divergent, the law does not 
admit of the location of the gore between the diverging lines. In case of the converg- 
ing lines following the dip of the vein, the government having issued a patent to each 
claim, a conflict would arise where the two converging lines crossed. The law should 
be changed so as to allow of a location without parallel end lines, so that in cases 
where there was not 1,500 feet in the locations, and. the lines diverged in following the 
dip of the vein at a point where they became 1,500 feet apart, then they should be 
made parallel. There are claims on this lead where, in course of time, conflicts will 
probably grow out of lines crossing. 



Testimony of John Skae and F. A. Trittle, at Virginia City, Nev. 

John Skae, mine owner and manager, testified at Virginia City as follows : 
The mining law is good enough as it is, but parties have obtained many fraudulent 
patents under it. I think the local mining districts should be abolished, and all claims 
be recorded in the United States district land office. 

There is a great deal of expense and trouble at present in getting patent title. In 
the case of the Sierra Nevada, the company I am president of, we were offered patent 
for our mine for $5,000 by an employ6 of government. The other adverse parties paid 
$5,000 for a patent (the Union) and took therein 300 feet of our grounds. We started to 
litigate, but compromised sooner than be at the expense of contesting the matter. I 
have been on the Comstock lode since 1859. A square location without conditions 
of piotection to mine owners and actual miners is unfit for the Comstock lode. An 
actual square location would stop mining here at once. 

F. A. Trittle, banker at Virginia City, heard the above statement and confirmed 
the same : 

I have been all over the State, and consider it a mining and grazing State. All 
agricultural land would have to be irrigated, and it is a mere incident. I would not 
sell the arid lands, as no man could pay taxes on such land and make a living. The 
government lands should be examined by government officers and classified, and arid 
lands put aside for grazing. It would be a good plan on the part of the general gov- 
ernment to give these arid lands to the different States, because the State authorities 
know best what to do with them. The general government should set aside in this 
State enough lands to be sold to establish a permanent school of mines on the Corn- 
stock lode. The government should also give the State an allowance of lien lands in 
place of 16th and 36th sections for school purposes. 



PUBLIC LANDS. 429 

Testimony of B. F. White, Beaver Canon, Idaho. 

B. F. White testified at Beaver Caiion, Idaho, October 7 : 

I have lived in Malad City twelve years. I was its recorder and treasurer for a long 
time. Idaho is hardly an agricultural country. About 1 acre out of 75 could be cul- 
tivated. The timber is all confined to the mountains. About one acre in a thousand 
is timber; it is mostly arid pasture land. lu this county taking the entire area, 
it would take 100 acres to keep a beef. The grass is very scant and poor. Sheep are 
destructive to grass. They would soon kill out these ranges so that they would not 
"be good for anything. The ranges are deteriorating. The ranges to-day in this county 
will not sustain one-twentieth of the live stock they would ten years ago. If these 
lands were in possession of the people, either by use or purchase, it would be much 
better. It is the only way to save these pasturage lands. They would then get bet- 
ter beef and more of it. I think the pasturage homestead is a first-rate idea. It would 
settle the country up as fast as it is susceptible of being settled. I have often thought 
of it, and I think it should be done. The large cattle owners ought to be protected, 
either by leasing the lands to them or allowing them to purchase. Idaho is mineral 
and pastoral, and these two interests must be protected. They are the wealth of this 
country. Cattle men are the only ones who take any interest in preserving the grasses. 
They now make some endeavor by uniting their herds and by pasturing alternate sec- 
tions to preserve the grass. 

The water rights are very well taken up. The water law here is : the first man who 
gets it keeps it, and the man who first takes it out retains the use and control of it, so 
far as natural needs are concerned, and then it goes back in the stream and his neigh- 
bors are entitled to the surplus. The only way any amount of water could be taken 
out is by uniting capital. The government should encourage irrigation by giving the 
companies proposing it each alternate section of land, or by offering some inducement. 

The only mining district here is the Cariboo district. It is simply developing now, 
but there are good prospects of finding good lode claims there. 

This is rather a poor county. The timber here is ravaged by fire all the time. No 
one now has any particular interest in it, and nobody cares for it. Something should 
be done to preserve the timber. I would put the whole matter under the district land 
offices, just as agricultural lands are, and I would arrange for the sale of this timber, 
in some way, so that persons would have some interest in it. They must preserve it. 
It is set fire to by Indians in order to run the game out ; prospectors set fire to it and 
travelers are careless about their camp-fires. All the timber here is pine ; there is no 
hard wood. No timber has been planted here yet. This arid land that is not suscep- 
tible of irrigation, I think, is worth about 5 cents per acre ; that is as much as the 
government can expect to get for it. I think individuals should pay for the survey- 
ing, but that expense is as much as the government can expect from them. I think 
these questions should be settled at once. Now is the time. If it is not done there will 
be difficulty when the future population comes in. So far there has been no direct 
conflict between the cattle and sheep men. Cattle cannot stay where sheep will. If 
properly taken care of, 100 cattle will support a family. There is not much fencing 
here. You cannot fence cattle during a storm. The only way to fence a winter range 
would be to fence the bottom land where there is shelter for the cattle. I would not 
sell these lands in unlimited quantities, but would allow a man to take them in pro- 
portion to the cattle he has at the date of the passage of the act giving authority to 
sell them. The wealth of this country is in its herds, and always will be. 

I think the rectangular system is a very good one ; but there is very much bad work 
being done. Men cannot find the corners after one or two years. The stakes are 
destroyed, and the cattle paw the heaps of dirt down. 

The supply of water here does not increase. Some years we have an abundance of 
water when we have had heavy snows, and then again when we have late snows we 
have little water ; the streams then go almost dry. The Malad Valley has heretofore 
always had a splendid supply of water ; but this year it has had so little that the 
crops have dried up. I always considered that the rainfall had gradually increased, 
until these two years past ; but my experience for two years has contradicted that idea. 
The melted snow ordinarily provides enough water to ripen our crops. There is no 
dependence to be put on the rain. We raise all the cereals and all the vegetables that 
grow in a northern climate. To irrigate 100 acres right, and to irrigate it when needed, 
it would take 100 miner's inches of water flowing twenty-four hours. Different kinds 
of land take different amounts of water ; it depends of course upon the kind of land. 
Irrigation enhances the value of lands by bringing in fertilizing salts and minerals. 
Lands that grow wheat crops year after year would not begin to grow the same crops 
in any other country. They would not wear as well without fertilization. Take this 
sage land : it looks as though it would not raise white beans ; and yet it would raise 
fine crops of wheat for ten or twelve years without fertilization. 

I do not know much about mines or mining, but I would place all questions pertain- 
ing to such matters in the hands of the registers and receivers of the local land offices, 



430 PUBLIC LANDS. 

I would permit the right of appeal to any local district court if there were, two claim- 
ants to a piece of land. It is worth ten times more than a piece of land is worth to go 
to law about it. I think the papers in the land office could he much simplified and 
condensed. Everything connected with the land office is too expensive. The very 
routine you have to go through tends to confuse you in a hundred different ways ; 
whereas if you had it simplified, and couid have a case settled right at home in the 
local land office or in the local courts, it would cost much less. In proving up men 
have often to go five hundred miles to do it. The whole thing should be simplified. 
That is my experience after hundreds of entries. 



Testimony of William G. Town, register, and E. S. Crocker, receiver, United States land 

office, JEvanston, Wyo. 

Evanston, November 4, 1879. 

William G. Town, register, and E. S. Crocker, receiver of the United States 
land office, testified that they have been register and receiver ever since the organi- 
zation of the above-named office. 

The Evanston district embraces three counties extending, approximately, 400 miles 
from north to south, and 200 miles from east to west. 

It is our opinion that the forms, &c, of papers in the land office should be simplified ; 
registers and receivers should have a seal, and should have power to subpoena wit- 
nesses and perpetuate testimony. Our experience has led us to the conclusion that 
fees should be abolished, district land officers paid regular salaries, and that set- 
tlers should not be required to pay fees, as such, but that all fees should be embraced 
in the acreage cost of the land. As it is now local land officers have very little execu- 
tive responsibility and are really only outside clerks of the department. This should 
be changed and they should be clothed with some official authority. 

In cases involving contest or abandonment on desert, swamp, or homestead lands, 
it requires three months, on an average, to forward the cases to the department, and 
to have the case cleared up there and returned. The register and receiver should 
have authority to act in such cases and to send up the papers or file them, in their dis- 
cretion, and let the legal qualified settler file at once ; as it now is, the wrong man 
sometimes gets the land. A person should have the right to file as often as he pleases, 
on a desert, swamp, or homestead claim, because the land is enhanced in value by his 
improvements, the government does not lose anything, and the man himself does not 
eventually get more than one homestead. In our opinion miners and agriculturists 
should be allowed to file a thousand claims, if they so desire, until each gets a tract to 
live on. 

More than a year ago we sent up cash entries for patents that have not been issued 
yet. All land cases should be patented in turn. 

The present homestead and pre-emption allowance of 160 acres per settler is totally 
and entirely inapplicable to the lands in this district, which are of such a character 
that a settler and his family would meet certain starvation on any such sized tract. 

The lands in this district are timber, mineral, and grazing. All the grazing lands 
are arid. There is no rain and no snow and but few running streams. The stock 
water comes from springs and streams. There is no agriculture to speak of in this 
district, all supplies of food other than the article of meat coming from California, 
Utah, Colorado, and the Eastern States. The timber in the mountains is mostly 
spruce and aspen, and cotton wood grows along the banks of the streams. We are 
informed that the north slope of the Black Hills is covered with beach, walnut, and 
pine. No timber has been planted in this district. Taking all the lands in this dis- 
trict we should say that 1 per cent, or less was in timber, and the rest, even the mineral 
lands, grazing. The timber lands should be surveyed and graded and sold in unlimited 
quantities, with this restriction orregulation : that the purchaser should clear off all dead 
timber so as to prevent fires, and that no timber should be cut for speculative or man- 
ufacturing purposes that was not over 8 inches in diameter. With a view to prevent- 
ing fire, all dead timber now on the public lands should be given to any person who 
would remove it. The timber should be sold separate from the land, the title to which 
should remain in the government. 

The United States district laud officers, who live with the peoplo and know their 
wants and ways, should be given full jurisdiction over the timber lands. 

Settlers should not bo prevented from cutting poles and posts for fencing, but they 
should be required to cut them out of the thick undergrowth so as to give the remain- 
der of the timber a chance to grow. The destruction of the timber at this time is fear- 
ful. Twenty-five times more is destroyed than is used by the peoplo. At the present 
rate, fire alone will utterly destroy all the timber within this district in five years. 
When once started they generally sweep clean, burning not only the standing and 



PUBLIC LANDS. 431 

dead timber, but the young growth and seeds as well, and the timber does not come 
up again. Fires are started either by the Indians driving game, or by white men 
through carelessness and recklessness. Persons can go on the timber lands and cut 
what timber they like, and much is unlawfully cut. 

The arid or grazing lands should be surveyed and sold in quantities to suit purchasers 
at a price not to exceed 10 cents per acre. Pastoral homesteads of from 3,000 to 3,500 
acres should be established by law. One hundred head of cattle in this country will 
keep a family ; 25 to 30 acres of this land will feed a beef. Under constant sheep or 
cattle feeding the nutritive properties of the land gradually decreases, but if stock- 
men had specific ranges under their permanent control they could then move their 
cattle from part to part, and the grass, which is mostly bunch, could be j>reserved. 

No law should be passed which would destroy our present cattle or sheep herds. 
They form the wealth of this country, which is solely adapted to grazing purposes. 
If the government does not sell these arid lands it should permit the present cattle 
and sheep owners to lease or occupy them under some law or regulation based upon 
the number of cattle and sheep they own at the date of the passage of the act, and 
the district land officers should issue permits to occupy quantities of land on proof of 
the size of their herds being made, and the same officers should have the power, as 
now, to take evidence of abandonment, and permit other occupants to go on the dis- 
used lands. The desert land act works well in this district ; 640 acres is ordinarily 
sufficient to make effective its purpose. 

The present system of surveying the public land is effective, and should be retained. 
The people are used to it, and can easily find their lands. More durable monuments 
and corners should be erected, and deputy surveyors should be held to strict compli- 
ance with their contracts. The boundary line between Utah and Wyoming was run 
in an improper and unskillful manner ; posts are not set as required by law, and are 
missing in many places for miles consecutively. They are generally broken down by 
cattle. Wooden stakes should be done away with and metal substituted and driven 
into the ground so as to protrude therefrom about six inches. They would not decay 
as wooden stakes do, and the cattle would not be able to break them down. 

There are no perceptible climatic changes in this district. There is a necessity for 
distinct cattle and sheep ranges, though cattle will graze on sheep lands for at least 
three seasons. In some parts of the district all the water that is available for stock 
has been taken up. 

The final notice to prove up should be abolished. 

There are about 100 townships plats in this office ; in about two-thirds of the town- 
ships there is not a settler. We need surveys at present badly, and the sixth standard 
meridian line should be run so that townships can be surveyed and subdivided. This 
standard would run through Bear River Valley, which is the best part of the district 
and is well settled. 

The best part of the district is occupied by the Shoshone aud Bannock Indian res- 
ervation, which is about 75 miles square and contains from 1,500 to 2,500 Indians. 
This reservation contains a great deal of mineral — gold, silver, &c. There is no game 
in it and the Indians have to be fed by the government. They should be allowed 160 
acres for each family and the rest of the reservation should be open to settlement. 

Artesian wells have been sunk to the depth of 500 feet here, but were failures. There 
is one petroleum-oil spring in the northern part of the district and the oil obtained 
therefrom is used on the Northern Pacific Railroad for lubricating purposes. It flows 
about 30 gallons per day. 

Coal extends from the line of the Northern Pacific Railway up to the Yellowstone. 

This district could sustain fifty times as many cattle as are now in it. 

All mining districts should be abolished and all claims recorded in the United States 
district land office, which should have authority to try all contests in mineral cases.^ 

Experience has shown that square location in mineral (lode) claims would stop liti- 
gation. If made square the claim should be larger than 1,350 by 1,350. 

The mining laws are very indefinite and complicated and are but little understood. 
They should be repealed and simpler ones substituted. 



Testimony of Laurence F. J. Wrinkle, mining surveyor, Virginia City, Nim. 

1. What is your name, residence, and occupation? 

Laurence F. J. Wrinkle; Virginia City, Nev. ; mining surveyor 

LODE CLAIMS. 

1. What experience have you had, and where and in what capacity, in the business 
of mining, mine surveying, and mine litigation ? 
Employed in United States surveyor-general's office, Navada, about three years. 



432 PUBLIC LANDS. 

Have been mining surveyor principally on the Comstock lode about nine years. Have 
also within the last three or four years prepared, either wholly or in part, the mining 
applications for United States patent of about a dozen claimants. 

2. What defects, if any, in the United States laws, their operation and administra- 
tion as applied to lode claims, do you know, either from your own experience or from 
observation ? 

(1) The law is not sufficiently strict in requiring the location to be properly marked 
upon the ground. (2) Permits location records, which are often indefinite, because 
the descriptions of the claims are made by persons who do not understand how to de- 
scribe them so a stranger can find out where they are situated. (3) Does not require 
the locator to see that his monuments are kept in their proper {/laces upon the ground. 
(4) Does not require proof of having done one-hundred dollars' worth of holding work 
upon the claim during the year to be recorded, nor to specify where on the claim such 
work has been done. 

As far as my observation goes, a very large part of mining litigation springs from 
disputes as to the actual position in which the original location-stakes of claims stood 
upon the ground (after such location stakes have disappeared, and the recorded notice 
of location merely describes the claim with reference to said stakes, with little or 
nothing to show how the actual position of those location-stakes is to be found in case 
they are removed or destroyed), and from disputes as to abandonment or failure of the 
prior locator to do the holding work required by law, such disputes arising in great 
measure on account of the laxity of the law in the particulars above mentioned. 

Another defect, in my opinion, is the provision which requires the end lines in all 
eases to be parallel. Take, for example, the case where No. 1 and No. 2 locate on the 
same lode, G H, leaving an intermediate portion of the lode less than 1,500 feet in 

, £ 

mzMzmmmmmzzMi 

G 



12 15 \- m2 ~\ 



^M^^Mzmmv^^^%?^^^ 



D B 



i 



length, which No. 3 locates. No. 1 has made his end lines parallel with each other, 
and so also has No. 2; but No. 2's end lines are not parallel to No. l's. Now, under 
the rulings of the General Land Office, if No. 3 makes one of his end lines coincide with 
the end line E F of No. 1, he cannot make his other end line coincide with A B, the end 
line of No. 2, but must run it in the direction C D, parallel to his other end line E F, 
leaving the triangular portion D C B, which nobody can locate, although the claim of 
No. 3 may be much less than 1,500 feet. 

A still further defect is that the law does not indicate (at least, not fully) how the 
righ ts of contestants are to be determined in case a prior locator has mistaken the course 
of the ledge, which, instead of running lengthwise of his location, proves to run diag- 
onally across it and. into a subsequent location. The following sketches will show 
more clearly the cases I would call attention to : (See diagrams marked " Case A," 
" Case B," " Case C") I have given to each contestant the ground to which I imagine 
he is entitled ; in fact, I have decided the cases for myself, whether rightly or wrongly 
is immaterial, as far as the object of illustrating the want of clearness in the mining 
act is concerned. In "Case A" the prior location, "No. 1," runs diagonally across the 
lode M N, one end line, A B, crosses the apex of the lode at P, and the lode passes out 
of the location at the point F on the side line AC. A subsequent location, " No. 2," 
is made, of the which the end lines are G E and H K. How are the claims of No. 1 
and No. 2 to be adjusted? In the case of The Flagstaff S. M. Co. vs. Helen Tarbet 
(reported in Copp's Land Owner for June, 1879), the court, in speaking of a person 
who (similar to No. 1) locates crosswise of a vein, says : " If he does locate his claim 
in that way, his rights must be subordinated to the rights of those who have properly 
located on the lode. Their right to follow the dip outside of their side lines cannot 
be interfered with by him. His right to the lode only extends to so m ueh of the lode as h is claim 
covers. * * * Though it should happen that the (crosswise) locator, by siukiug shafts 
to a considerable depth, might strike the same vein on its subterranean descent, he ought 
vol iointerfere with those who, having properly located along the vein, are pursuing their 
right to follow the dip in a regular way. So far as he can work upon it, and not inter- 
fere with their right, ho might probably do so, but no further; and this consequence 
would follow irrespective of the priority of the locations.'' , 



PUBLIC LANDS. 



433 



Now, since the end line A B, crosses the apex of the lode, " No. 1 " is entitled to fol- 
low the lode in depth along the vertical plane of said end line ; bnt from the point F, 
where the vein leaves the claim through the side line, I think the above-quoted decis- 
ion would indicate that " No. 1 " is only entitled to follow down the dip of the lode ; 
that is, " No. 1 " would he bounded at the end next " No. 2" by a vertical plane passing 
through the point F at right angles to the course of the vein until such plane inter- 
sects the plane of the other end line C D, at S, then from S " No. 1 " would be bounded 
by the plane C D S Z of the end line C D. " No. 1 " should be limited by the plane 
of the end line C D Z in place of allowing him to follow indefinitely the plane F S 
W beyond the place of intersection, S ; because, if he were allowed to do so, he would 
eventually acquire much more ground than he originally located. 



iK 



\ 



\ 



\ § 



W 



I 



Ua 



10DE AT 1500 F*S 



l~o/r DEPTH. 




Case A. 

"No. 2 " must, towards the surface, relinquish a portion of his claim and respect the 
boundary fixed between " No. 2 " and " No. 1," but with increase of depth " No. 2 " 
may finally reach the plane of his original end line G E, beyond which he must not 
pass, and a piece of vacant ground will then be left between " No. 2 " and " No. fc" 

" No. 3 " having to respect the boundary plane of " No. 1 " on one end, and his own 
end line V T at the other, finds his claim to diminish in depth; but he can only blame 
himself for not locating his end lines parallel to " No. 1." 

28 LO 



434 



PUBLIC LANDS. 



In case B, " No. 1 " has not succeeded in crossing the apex of the lode with either 
end line ; adopting the rule followed in Case A, that he is only entitled to follow 




Case B 

the dip of the lode between vertical planes at right angles to the strike or course 
of the lode, said planes passing through the extreme points of the lode inter- 
sected by the side lines of his location until he is intercepted by the plane of 



PUBLIC LANDS. 



435 



the end line established by himself; thus "No. 1," the prior locator is in depth shut 
out altogether. But on ascertaining this state of things he is at liberty to make a new 
location, taking in some or all of the vacant ground shown on the diagram, provided 
such new location does not conflict with the rights of third persons. 

Case C is a modification of cases A and B, readily understood from the diagram. 




Case C. 

There are locations in this district which will probably in the future give rise to the 
questions presented by cases A, B, and C, and perhaps the law should indicate the 
rule to be followed in deciding 
them. If so, a fixed method of de- 
termining the average course of the 
ledge through the ground in con- 
troversy would also need to be pre- 
scribed. 

Another case which might arise 
and work injustice under our pres- 
ent law (although I am not aware 
of such a case having actually oc- 
curred) is this: "No, 1" discovers 
a lode some distance below the sur- 
face in the shaft B, and makes his 
location " No. 1 " ; afterwards it is 
found that owing to the dip of the 
lode the apex is all within the sub- 




436 . PUBLIC LANDS. 

sequent location " No. 2." Does it not follow from the decision in the case of the 
Flagstaff S. M. Co. vs. Helen Tarbet, above quoted, that " No. 2," who has " properly 
located along the vein," shall hold the same against the prior discoverer " No. 1," who 
has not properly located ? Should not the law be amended to allow "No. 1" in such 
a case a certain limited time, say 60 days, to ascertain the true direction and dip of his 
vein, and make a proper location ? Requiring him, however, to immediately file a 
record notice of such discovery, stating what length along the vein he intends to take 
on each side of the sbaft. 

4. What do you understand to be the top or apex of a vein or lode ? Can or cannot 
the top or apex the course and angle or direction of the dip, always be determined in 
the early workings of the veins or lodes ? 

In case the vein outcrops at the surface, I would call any portion of such outcrop 
the top or apex. If the vein does not reach the surface, then the highest point to 
which the vein or lode can be traced is the apex (not necessarily the nearest point to 
the surface, but the absolute highest point), using the term vein or lode in the sense 
adopted in the case of the Eureka Consolidated vs. Richmond. If the vein does not 
outcrop on the surface, the apex is only to be discovered by exploration. The course 
on the surface, owing to inequalities of elevation and of the dip of the ledge, often 
varies from the course shown by a level underground. The dip may change to be 
steeper or flatter from one level to another. Generally in making locations no system- 
atic effort beyond surface observation is made to ascertain the apex and course of a 
ledge; reliance is placed on luck very often in that matter as well as in the matter of 
finding pay ore in the claim; 

5. I think all rights a discoverer or prospector actually secures (although in some 
cases not all he intended to secure) under his location can be properly defined and pro- 
tected by the present la w with some few amendments. I think a prospector who locates 
a claim and strikes a lode which turns out to belong to his neighbor, because the top of 
the lode is in the neighbor's claim, has no more reason to complain of the law than he 
would if he failed to find ore in his claim. In the same way a man who locates across 
a lode instead of along it — the law gives him the right to locate 1,500 feet along the 
lode — but if he makes his location, in the exercise of that right, in a way to cover less 
than 1,500 feet, he can only blame his own ignorance or want of luck. Let it, once for 
all, be understood that the location must cover the apex of the vein throughout the 
length of the claim, and more attention will be given to this matter by locators and 
purchasers. In general, a man can hardly be called a discoverer of a lode if he is 
ignorant of its position on the surface, or he may discover 500 feet but not 1,500 feet. 

6. Litigation has, but not to my knowledge any injustice. 

7. Yes. 

8. No. 

9. Yes. 

10. Yes ; but the locator might have made his location follow the windings of the 
lode. 

11. In general, I believe it makes no difference to the locators upon true lodes 
how many locations are made upon barren ground. I apprehend that, at the outset, 
especially in a new mineral district, it would be a difficult matter to draw the line 
between what are locations on real lodes and what are locations upon barren ground. 
This facility of making alleged mineral locations has enabled individuals to monopo- 
lize the surface-ground in front of certain claims on the Comstock lode, which Corn- 
stock claims required the ground for shafts, &c, and had to pay a few thousand dol- 
lars extra for the ground to the "wild-cat" owners. Comstock owners have thus 
compromised with these claimants instead of availing themselves of the Nevada statute 
(which allows non-mineral lands to be condemned where necessary for the effective 
working of a mine), except in the case of the Oberman Company et al., which procured 
the condemnation of the "Yankee" mining claim for a site for the Formau shaft. 
Litigation in this case is still pending ; this litigation, if persevered in, may help to 
determine what, under the law, constitutes a valid mining claim. In a mineral dis- 
trict, small seams may very often be found yielding low or tolerable assays of precious 
metal, and occasionally these small seams lead to workable deposits of ore, though 
ordinarily the contrary is the case. Many of the barren " wild-cat " locations cover 
such small seams. Between the United States and the claimants of alleged mineral 
ground, it would seem to be to the interest of the United States to dispose of its title 
and receive pay for the same. Let those who wish to prevent the sale of United States 
land as mineral prove its non-mineral character in every case. Greater strictness in 
requiring the full amount of the annual expenditure, and a provision analogous to 
that suggested in reply to question 22, would do away with many of these wild-cat 
locations. 

12. Yes, litigation is liable to occur. The legislation of the mining States, I believe, 
provides for such cases. 

13. As to the first question, I reply, yes. As to the other question, I am sure the 
bulk of the litigation in this district arose from the causes specified in reply to question 




J-fouse. /7x. Doc *4-6. 



PUBLIC LANDS. 437 

No. 2, and from disputes as to whether the Comstock lode was only one vein or several 
parallel veins ; the locations ahout which most of the litigation has occurred having 
been made under the act of 1866 or previous thereto. 

14. Accepting the definition cf a lode as given in the decision of the Eureka Consoli- 
dated vs. Richmond as the true one, which I think it is, "the variety and complexity of 
mineral deposits in rock in place" enters but slightly into the question. The question 
really will be whether the "lode" (as thus defined) can possibly be traced by means of 
its walls, as they continue downward beyond the side lines of the location ; when the 
dip of a vein can thus be followed downward, it is quite possible also to ascertain the 
apex of the vein merely by following the dip upward instead of downward; and who- 
ever has the apex must have the whole vein. Of course, where there is any doubt as 
to whether the mineral is contained in a regular " lode " or in an irregular deposit, 
litigation to bring forth all the facts of the case must ensue. I do not believe any law 
can be devised which will entirely shut off litigation ; cupidity will always be able 
to devise ways to attack valuable mining property. 

To give the right to the discoverer of an ore-producing vein to make a square loca- 
tion of 1,500 feet on a side, with the right to all the mineral included within vertical 
planes passing through the lines of suchlocation, not permitting such locator to follow 
the dip beyond his lines might prevent some of the litigation which now arises. But 
would not litigation on new points arise to take its place ? And would not such a 
system have drawbacks that would counterbalance whatever advantage might follow 
immunity from litigation ? One of the drawbacks is, that while the lucky prospector 
or discoverer might reap a greater reward than now for his exertions, since by discov- 
ering a comparatively unimportant vein he might secure a much richer vein lying 
within 1,500 feet, of whose existence he had no knowledge at the date of location; in 
fact, he might, by the discovery of a small outcrop, easily monopolize a large portion 
of a valuable mining district, shutting out many just as diligent and meritorious pros- 
pectors as himself — the present law giving the discoverer all he actually finds — while 
the square location might make him the constructive discoverer of a vein a thousand 
rimes more valuable than the one he really found, yet, on the other hand, the square 
location would place the actual ore producer and developer of mines at a disadvantage 
as compared with his privileges under the present law. By square locations a few im- 
pecunious individuals might monopolize a whole mining district and thus retard its 
development. Capital would also be more afraid to invest than now, because every 
vein with a dip would have an artificial bottom (where the vein passes out of the 
location), and the real bottom is now very often reached too soon. 

The annexed diagram shows how such a law would have worked on the Comstock. 

The red lines A, B, C, D, represent the boundaries of the first series of square loca- 
tions, and C, D, E, F the boundaries of the second series of square locations that 
would have had to be made on the Comstock lode, and the dotted red line shows the 
eastern limit of the present workings at an average depth of probably 2,400 feet below 
the croppings. The places shaded red upon the map and marked bonanza indicate all 
the ore-producing ground thus far found within the limits of the supposed second 
series of square locations. As it would be manifestly impolitic to let such square loca- 
tions be valid until ore was actually found within their limits, the majority of the 
Comstock companies would now be drifting around without secure title to any ground, 
which, circumstance would render it difficult to collect assessments to proseecute 
further explorations. As an illustration, consider the case of the Sierra Nevada 
and Union. The Sierra Nevada and Union bonanza was discovered by the Sierra Ne- 
vada Company at a depth of 2,100 feet; this company vigorously explored the full 
length and breadth of their location at different levels through the Sierra Nevada, 
shaft, doing all the work by assessments, and most of the time through very unprom- 
ising ground, with no encouragement except the fact that the lode still continued and 
the hope that finally an ore body would be reached. Could the Sierra Nevada Com- 
pany have raised money to spend on such work if there had been any danger of a 
stranger sinking a shaft and striking the ore before them, and thus depriving them — 
the grantees of the original discoverers of that portion of the Comstock lode — of the 
fruits of all their labor, as would be possible under a square location law ? As a fact, 
the Union shaft, which was started and sunk 1,300 feet by an outside company in the 
hope of finding a ledge east of the Comstock, would certainly have reached the ore 
before the Sierra Nevada workings if the then owners of said shaft had been incited 
to energetic work by the chance of securing a part of the Comstock lode. The Union 
shaft reaches this ore body at a depth of about 2,250 feet. Yet in aM, probability if such 
square location law had been in force, neither the Sierra Nevada shaft nor the Union shaft 
would ever have been sunk, nor the bonanza, worth millions, ever found. For before 
the present Sierra Nevada shaft was started an older shaft was sunk 800 feet and the 
vein prospected therefrom at different levels, all the way through barren ground ; if 
to this fact had been added uncertainty as to the further depth to which they might go 
before being cut off by some more fortunate explorer, the costly hoisting works over 
the present Sierra Nevada shaft would never have been erected, and the ground would 




n,„.. r.D.t w 



438 PUBLIC LANDS. 

have been condemned in popular estimation as utterly worthless and barren, and it 
would have been impossible to raise money for any mining operation in that vicinity. 

Another complication which I imagine might arise under a square location law is 
this : The first discoverer of an ore body being entitled to make bis square location in 
the most advantageous way, in the case before us the Sierra Nevada Company, hav- 
ing reached the ore long before the Union, would locate directly in front of said Union 
Consolidated Company's workings, cutting them off altogether after they have spent 
years exploring the barren upper portion of the lode — a hardship and injustice be- 
yond any likely to happen under our present law. 

Moreover, it necessarily follows that if a miner were not allowed to own his ledge 
beyond his side lines, that portion beyond would be subject to appropriation (to the 
extent of 1,500 feet square) by the first one who would sink a shaft, strike the ledge, 
and discover ore therein. It is not a sufficient answer to this to say that the original 
locator would have an equal chance to sink and explore beyond the side lines of his 
location ; because the simple sinking of a vertical shaft is not subject to so many de- 
lays, difficulties, and dangers as attend the opening of a mine from level to level 
throughout its length and breadth, and the extraction of such ore as may fortunately 
be found, the raising of which ore of course delays sinking. The case of the Savage 
and Hale and Norcross companies may be referred to as an example. These compa- 
nies have worked along the vein to a vertical depth of about 2,500 feet below the out- 
crop and (as shown by the dotted red line on the diagram) have nearly reached the 
easterly limit (red line E F on diagram) of the second series of supposed, square loca- 
tions. At this depth a tremendous influx of hot water occurred in the Savage mine, 
flooding it and the Hale and Norcross. Very expensive pumping machinery was put 
up by each company for the purpose of disposing of the water. After the expenditure 
of more than a million of money and more than two years' labor, they have with the 
aid of the Sutro tunnel drained their mines. This contest with the water strained to 
the utmost the resources of these companies ; during the time that they were strug- 
gling with that element which has caused the abandonment of so many productive 
mines a company of adventurers might have sunk a shaft, say in the position of the 
Kequa shaft, down into the Comstock lode. Would it be fair now to give such adven- 
turers an equal chance with those companies to search for ore and enjoy it when found? 
So, two or more companies of adventurers might sink shafts near each other in front 
of the Comstock lode, the company that found ore first would survey the other shafts 
into their location, at once a waste of capital and a fruitful source of litigation. 

Furthermore, the party sinking a shaft over the dip of a vein, beyond the limits of 
a prior square location, would enjoy another advantage over the original locator work- 
ing down on the dip of a vein, in the possibility that his shaft might develop, at a 
lesser depth, an outlying vein or a seam or feeder of the vein originally sought, winch 
might yield ore, thus securing to the owner of the shaft his location 1,500 feet square, 
and at the same time destroying the prospects the original locator had of being able 
to follow his lode beyond the side lines of his location ; and in case such original 
locator, fearing the above result, were himself to start a shaft for prospecting beyond 
his side lines, he would have to weigh his chances of competing with rivals in choos- 
ing the site of the shaft instead of considering its advantages for the economical work- 
ing of the vein in the future as is now done ; witness the Forman, Kequa, and Osbiston 
shafts, which are located far beyond the line of the second series of square (1,500 feet 
wide) locations. That the above objection has foundation in fact may be seen by re- 
ferring to the Silver Hill and Justice claims, shown on the diagram, at the south end 
of the Comstock lode. In front of them lie several claims containing ore ; one of them, 
the Cook and Gray, has yielded more than forty thousand dollars' worth of ore. If 
square locations had been allowable, this ground in front would naturally be located 
somewhat as shown by the yellow shading (occupying the whole of the second tier of 
square locations), and thus the Silver Hill and Justice mines would be cut off from 
further working. But under the present law T , which suits them very well, these mines, 
which probably so far have no more than paid expenses, although they have yielded 
about two million dollars' worth of ore, thus benefiting the community, being now 
possessed of machinery well calculated for deeper workings, continue their explorations 
in the hope of finally finding a bonanza which will yield a profit on all their expendi- 
tures. 

To show how litigation might in another way arise from square locations, I have placed 
in their true position upon the diagram a few of the " outside claims " that abound 
in tbe neighborhoods the Comstock, namely, Scorpion, the Leviathan, and the Sullivan. 
The heavy lines show the present limits of these locations, and the yellow shaded lines 
what they would probably have been (1,500 feet wide) under a square location law. 
These claims all have promising ledges of their own, and may, by further exploration, 
find ore. The Scorpion has a United States patent. Under the present law they are 
a detriment to no one except, perhaps, their owners. But under a square location 
law, and the stimulus of a prospective slice of the Comstock, they might possibly all 
be soon induced to yield sufficient ore to render them valid square locations, and their 



PUBLIC LANDS. 439 

•owners would become the owners of all mineral within their boundaries to the center 
of the earth, with what results to Comstock mines the diagram shows. 

Senior Gamboa, in his Commentary on the Spanish Mining Laws, mentions a case 
where the pious claimants of such a square location took the priest out to bless the 
pit out of which the ore which made the location valid had been taken in order that 
success might attend their further explorations. It afterward was found they had 
salted the pit. I fear, if we should introduce such a law, many an honest miner would 
have occasion to curse such pits From the numerous lawsuits referred to by Gamboa, 
I should infer that litigation was rather frequent under the Spanish (square location) 
laws he treats of. 

The truth probably is that a square-location law would work passably down to a 
limited depth, beyond which the interests of deserving miners would suffer. The Mex- 
ican-Spanish (square location) law was suitable for its day and generation, but that 
-day has passed. When said law was framed 600 or 800 feet was an astonishing depth 
to work a mine. About that time -a Mexican drain-tunnel, pushed with every resource 
of skill and energy, was advanced toward the Biscayna vein 2,500 feet in five years. 
The Sutro tunnel commonly advances more than that in nine months. The Mexicans 
reached a depth of 1,500 feet in three hundred years ; we have gone down 3,000 feet 
in twenty years. With the rapid improvement of labor-saving mining machinery and 
engineering appliances, poorer veins than the Comstock will, in the near future, be 
worked as rapidly to as great and greater depths than the Comstock, and perhaps richer 
veins also, yet to be discovered throughout the vast extent of our mining regions. 
Moreover, the present law is an indigenous product, the legitimate offspring of our in- 
stitutions and the peculiar circumstances of our own miners, based in great part upon 
their local regulations. It has undergone a gradual process of development and im- 
provement by statutory enactments and judicial decisions, from the commencement 
of mining on this coast up to the present time. Such gradual amendment should con- 
tinue to be made as experience shall show its necessity, but we should make no radical 
change from the present system, which is so well calculated to encourage and protect 
mining to the greatest depths attainable by the resources at our command. 

19. The mining law should be uniform. I think all mining-district laws and cus- 
toms could be advantageously abolished, leaving the mining acts of Congress alone ; 
but the district recorders could hardly be replaced by the United States land officers, 
because new districts are constantly being found remote from settlements, and to abol- 
ish the office of district recorder would lead to inconvenience, confusion, and expense, 
which locators generally cannot afford. Certain changes in the mode of locating and 
recording, suggested in reply to question 21, would remove some of the objections to 
district records. 

20. I think not, because very often, as compared with land contests, the questions 
to be decided are more complicated, the property in controversy more valuable, the 
evidence of possession, &c, is often conflicting, requiring to be sifted by a jury ; the 
judges of the State courts are elected by the people, more directly amenable to them 
for misconduct, and generally better versed in the law than the local United States 
land officers, while appeals to Washington, which would constantly be made, would 
be more expensive and dilatory than litigation in the local courts. 

22. I think the most practicable way to induce locators to apply soon for United 
States patent would be to lessen the expense of getting such patent. Publication of 
notice might in some cases be dispensed with, as suggested in reply to question 21. 
The price of the land is not much of an object to the government. It would be rather 
harsh, I think, to forfeit a claim for neglect in this respect. 

21. The amendments I would suggest refer principally to fixing the locations, as fol- 
lows: 

The location. — The center line of the location shall be marked by a line of posts or 
monuments placed along the course and windings of the lode, as near as can be ascer- 
tained, said posts to be not more than 300 feet apart and within sight of each other, 
beginning at one end of the claim at a post marked the " beginning post ;" said posts 
or monuments to be uniform in appearance and substantially erected to a height of at 
least 4 feet above the ground and conspicuously and permanently marked with the 
name of the claim ; and each intermediate post shall also have marked upon it the 
distance in feet from the beginning post to that particular post ; and the locator shall 
place upon the beginning post and maintain thereon, until United States survey of 
the claim shall be made and recorded as hereinafter provided, a memorandum, giving 
the name of the locator, date of the location, length of the claim, and distance from 
said beginning post to each intermediate post, also the width claimed on each side of 
the center line thus established on the ground; the location, to be filed in the proper 
district recorder's office as soon as possible, shall give all the data prescribed for the 
above memorandum at the beginning post and shall fix the position of said beginning 
post and such intermediate posts as may be available, by reference by distance and 
direction to near and prominent permanent objects; said notice of location to be 
signed by the locator and one or more witnesses, who shall testify to the fact of the 



440 PUBLIC LANDS. 

posts being set and marked according to law. Then, within one year of making such 
location, the locator shall procure a survey of his claim to be made by a duly qualified 
United States deputy mineral surveyor, who shall personally see to the placing of the 
corner posts of the claim under the regulations and instructions of the Commissioner 
of the General Land Office. The end lines of the claim must be at right angles to the 
course from the beginning post to the first intermediate post, except where the claim be- 
gins at the end of another claim upon the same vein, the end lines of which have already- 
been fixed by United States survey, in which case the end lines shall coincide in direc- 
tion with those of said prior Uni ted States survey ; and also except where the claim 
embraces all the ground lying between two other surveyed claims, neither of which has 
been located by the present locator, in which case the end of his lines may be made to 
coincide with the end lines of such adjoining claims, it being understood that the center 
line of such United States survey must begin at the beginning post of the claim (unless 
said beginning post is within the limits of astill valid location described by a prior United 
States survey), and follow the line of posts set on the ground to mark the location for 
a distance not exceeding 1,500 feet, nor extending beyond the last post set on the loca- 
tion line, even if it is at a less distance than 1,500 feet from the beginning post, and 
although the location notice may call for 1,500 feet. It shall be the duty of the United 
States deputy mineral surveyor to file a copy of the plat and field-notes of such survey 
in the proper United States surveyor-general's office for his approval, without unnec- 
essary delay, after he has been paid for such survey. And, after approval, no further 
survey will be required when the locator or his grantors apply for United States 
patent for the claim. The United States deputy mineral surveyor shall, after such 
approval, also furnish the owner a full and accurate description of said United States 
survey, for record by the owner in the proper county recorder's office. Until such 
record is made, any person otherwise qualified shall have the right to enter upon and 
take actual hona-fide occupation of whatsoever part of the surface ground embraced 
by such location as may not be actually occupied by the locator with useful mine 
workings or buildings, and may use such surface for any purpose whatever not con- 
flicting with the locator's right to the precious metals; and the exclusive possession 
of the locator shall only extend to that portion of the surface ground not thus occu- 
pied prior to the record of said United States survey in the proper county recorder's 
office ; provided, however, that the locator may, if he chooses, dispense with the pre- 
liminary location of the center line and initiate his claim by causing the above United 
States survey to be made. The date of the survey will then be the date of the loca- 
tion, and such date shall be the time when the corner posts are actually placed in 
position on the ground by the United States deputy mineral surveyor. Record is to 
be made in such case in both district and county recorder's offices. And in case such 
survey is made and recorded as directed within one year from the date of the location, 
the expense of such survey, to the extent of $50, may be counted as part of the $100 
worth of "holding work" required by law for that year, the locator, however, to 
make his own terms with the surveyor regarding payment. 

A penalty should be imposed for removing or defacing the posts of a United States 
survey of a still valid location. 

Any party having an adverse claim to any portion of the ground included in such 
United States survey may bring suit in the proper court at any time within two years 
from the date of record in the county recorder's office of said United States survey, in 
order to determine their right to the ground in controversy ; if they fail to bring suit 
within such period of two years their adverse claim will be barred, provided the posts 
of said United States survey have been kept standing in their proper places on the 
ground during that time, and conspicuously marked with the name of the claim and the 
number of the United States survey. An affidavit by the owner or his agent of contin- 
uous possession, with that of two witnesses of the fact of said United States survey 
posts having remained standing in their proper places during two years from the date 
of record of said survey, with certificate from the clerk of the court that no suit has 
been brought for any portion of said claim during that time other than what has been 
decided in favor of the applicant, and the usual abstract of title and certificate of 
work done, shall entitle him to United States patent, on payment for the land and the 
necessary plats and descriptions from the United States surveyor-general's office, with- 
out putting notice in the newspaper and on the claim as now required ; but the claim- 
ant may have the option of publishing uotice of application for patent at any time as 
heretofore. 

Affidavits by the owner or his agent and two witnesses must be filed in the county 
recorder's office at the end of each year from the date of location, specifying the value and 
kind of labor and improvements (for " holding work "), and the precise locality upon the 
claim where such labor and improvements have been done; also, the date or dates when. 
And a failure by the claimant to comply with the regulations as to keeping memoran- 
dum on the claim, marking and preservation of posts and monuments, and record of 
affidavit of "holding work" done on the claim, shall render said claimant liable for 



PUBLIC LANDS. 441 

damages to any person who, without notice, relocates the claim or any part thereof, 
and is pnt to useless expense through the neglect of the aforesaid claimant. 

No United States mineral survey shall be made over any portion of a prior United 
States mineral survey, unless the claim embraced by such prior United States survey 
be proved to be abandoned or forfeited, and personal notice or by publication shall be 
given to the claimant of such prior United States survey that a new United States 
survey is about to be made. 



Testimony of R. M. Atkinson, of Santa Fe, N. Mex. 

Santa Fe, N. Mex., September 2, 1879. 

H. M. Atkinson, surveyor-general of New Mexico, made the following statement : 

I am in favor of retaining the rectangular system of parceling the public land. It 
is cheaper than any other system, and the settlers understand it. Owing to its sim- 
plicity, it is a very easy matter for them to find the corners if they are properly placed. 
I think the system can be improved. For instance, establish* certain time points, 
either by astronomical observation or triangulation, for the sake of accuracy. If the 
points are not near together they could be more cheaply determined by astronomical 
observation. I would suggest that at perhaps every fourth township a very large 
monument of stone be placed, similar to those used for Territorial boundaries. They 
should be of some durable material, such as a metal stake, perhaps corrugated iron 
would be advisable, but the present system of subdivision and exteriors I consider 
preferable to establishing them by triangulation. I favor triangulation for the pur- 
pose of getting over deserts, mountains, or other obstacles where chaining cannot 
well be done or townshiping or subdivision is not desirable, yet keeping up the dis- 
tances as though it had been done by chaining. My idea is to get something perma- 
nent, no matter what you may settle on. The system of triangulation is of course 
more accurate, but it would require a large additional expense to change the system, 
and then it is not only the direct expense, but it would be an expense to the settlers, 
for they would have to employ surveyors. 

The wooden stakes now used are frequently destroyed by different means. The cat- 
tle rub against them and paw them down and they rot away. I think the monuments 
ought to be of stone or of metal or of something durable and lasting. 

I would suggest another improvement. If the deputy surveyors would take into the 
field with them aneroid barometers and take the elevations and depressions, it would 
enable them to establish the contours of the country. It could be done at very little 
expense, merely the time and the cost of a barometer. 

In order that the classification of the land into mineral, agricultural, arid, &c, as 
now required by law, should be more accurately made, I think a geologist competent 
to determine the character of the land should accompany each deputy surveyor's 
party. This geologist could be selected either by the General Land Office or the 
surveyor-general. The deputy surveyors under the present system do the work 
cheaper than it could otherwise be done. 

All the land ought to be surveyed, for this reason : the classification which Con- 
gress makes results in this, that small portions or townships are surveyed (the arable 
portion or irrigable portion), leaving the balance unsubdivided and to be subdivided 
at some future time. It costs just as much to make a plat of a fragmentary part as 
it does to make a plat of an entire township. It makes double the work subsequently. 
Frequently men want it for the timber outside of the arable portion, or for grazing 
land. These grazing lands are of no earthly use for agricultural purposes, and there 
is no reason why they should not be surveyed and utilized for stock-raising. I think 
if I owned that land I certainly should want to receive some income from it. I would 
dispose of it to men who could utilize it, and the government should do business on 
the same principle. It gains nothing by holding these lands ; they will not for many 
years become arable. Frequently we survey the whole exterior lines in order to get 
the inner boundary of a fractional township. The average cost of surveying the ex- 
teriors of a township is $8 per mile, or $190 to $200 for the exteriors. 

We have two classes of land, mineral and arable, and a considerable portion of irri- 
gable land. There are from 3,000,000 to 8,000,000 acres of arable and irrigable lands 
unsurveyed, lying in every section of the country. Except by hunters and pros- 
pectors, very little is known practically of the southwestern portion of the Terri- 
tory above Silver City and on through to the Arizona line. A good portion of 
this land in the mountains is timber land. Fine timber is also found on the mesas. 
There is mineral all through the Territory, though it is comparatively undeveloped. 
We have almost all the economic minerals : gold, silver, copper, iron, lead, mica, &e. 
There has been more substantial prospecting done in the last six months than ha& 
ever been done before. Wherever ledges have been struck valuable deposits have 



442 PUBLIC LANDS. 

been found. There ought to be some modification in the mining law. Do away with 
these district local usages and have one United States law or system of laws to govern 
all the mineral districts. There ought to be a law passed putting the filing of mineral 
claims in the hands of the registers and receivers of the various land districts, and then 
they should appoint deputies in those counties of districts that are a long way from 
the land office. The present law should be amended in this respect, and the record of 
these filings should be " noticed." The United States, in agricultural and other classes 
of land, retains the title to the land from the minute of survey till the issuing of the 
patent. Why should this not be the case with mineral land ? It would simplify the 
whole matter to keep it in the hands of the government. As it is, one mining district 
has one set of rules, and another, right next to it, has a different set of rules, making- 
it very annoying and giving rise to vexatious litigation. If the law was universal 
everybody would get to understand it and become familiar with it. 

Question. Do you know what the "apex" of a lode is? — Answer. I suppose it to 
mean where the lode appears on the surface, but I believe the courts do not so con- 
sider it. I think the claims should be confined to their side as well as their end lines, 
giving each one 20.66 acres. As the mineral resources of New Mexico are just open- 
ing up, I think some legislation ought to be enacted to obviate endless mining litiga- 
tion. . • 

In regard to the pastoral lands I am in favor of having them surveyed, graded in 
price, and offered for sale at private entry in as large amounts as tbe purchaser desires ; 
and yet for some reasons it might be well to limit the amount. 

Q. Would you be willing to allow an actual settler to take up land sufficient to keep 
a herd that would support his family in the same way that a man is allowed to take 
up an agricultural homestead — a sort of pasturage homestead ?— A. I should think that 
a very good thing, though I never thought of it before. 

There is one thing I should like to speak of. I think the small Mexican settlements, 
occupying little tracts of land along the streams, as they do now, ought to be pro- 
tected; and in order to protect them in their rights I would provide that they should 
either take it as town sites or else they should pay for the land as other people do, in 
legal subdivisions, which could be again divided into subdivisions of 40, 20, 10, or even 
5 acres, to accommodate the small owners, or else divide them up in such a way as 
would least affect the present boundaries of their claims. I would not, however, de- 
stroy the regularity of the present system of surveys. These people have no title 
from the United States to their lands, but they have lived there a long time, were the 
original owners of the land, and they should be protected. 

Q. At what price would you sell the pasturage land?— A. It depends altogether on 
the proximity to water. They should be graded, perhaps, from 25 or 30 cents to $1.25 
per acre. This grading could be done on the classification made by the deputy. 

The water rights are not all taken up in this Territory. There are plenty of water 
rights which could be taken on the Pecos. There is sufficient to irrigate with on that 
stream. In so far as the country is settled the water is taken up, but all the country 
is not yet settled. 

The proportion of agriculture to stock-raising is about one to four in favor of stock- 
raising as against agriculture ; that is, as to the value of the product. As regards the 
capital invested, I think that there is about $20,000,000 invested in stock-raising 
against $4,000,000 or $5,000,000 invested in agriculture. 

Of late there has been a very perceptible increase in agriculture and there has also 
been an increase in stock-raising. They are bringing stock in here from California, 
Texas, and other places, and these pasturage lands are becoming very desirable. They 
will bring almost as much for that purpose as they would ordinarily for agricultural 
purposes. I consider 30 acres of land a liberal estimate for preparing a beef for mar- 
ket, and one beef will equal five or six sheep. There is room for more cattle here yet ; 
millions of acres are still unused. This year has been an unusually dry season, but 
the rainfall here last year was nearly 16 inches ; at Mesilla it was about 8 inches, and 
at Silver City it was between 16 and 17 inches. This was a little dryer than the sea- 
son before I came here. This year there has been a perceptible decrease, but the gen- 
eral rainfall seems to be increasing. From the suppression of the forest fires the veg- 
etation is, I think, increasing. There is a great deal of timber here ; the mountains, 
foot-hills, and mesas are covered with pines, aspens, cedars, &c. These timber lands 
are not much injured by depredations, and a great degree of caution is exercised by the 
people in regard to forest fires. 

Q. What disposition would you make of these timber lands ?— A. I would sell them. 
I can see no advantage in holding them. I would sell them under the present legal subdi- 
visions in any amount a man wanted, for if I wauted 1,000 acres for milling purposes I 
would get it in some way. I do not believe a graduated method of cutting the timber 
could be established here, though I think everything possible ought to be done to encour- 
age the growth of the timber. I think the supervision of the timber lands should be 
placed in the hands of the register and receiver, as they are right on the ground all 
the time and can exercise a more intelligent jurisdiction over it than any one else. 



PUBLIC LANDS. 443 

They could administer the laws better than an outside agent. There is a much larger 
scope of this country that is capable of agriculture than is supposed. My impression 
when I came here was that a very small part of it was fit for agriculture ; but the 
prospectors in the south and west are showing up considerable areas of arable land. 

Q. How would you prevent this land from being taken up as pasturage land at a 
low price ? — A. I would reserve the arable portion from private sale and dispose of it 
under the homestead law. I would abolish the pre-emption law. 

Q. Why ? — A. Because the homestead law has a pre-enrption feature iu it already. 

Q. How could you classify the land ? — A. That could be doue by the deputy surveyor 
and the geologist, who should be appointed to go along to classify the land. 

Q. And how could you determine just what was irrigable land ? — A. Wherever there 
was water accessible the surveyor would know that so much of the land near by was 
irrigable. 

Q. And how could you make a practical division so that these gentlemen here by 
looking on this map would know what is irrigable and what is pasturage ? — A. From 
the information c olle cted by the surveyor in making his plats, I would have the draughts- 
man simply note — say, here is a section — I would have him note that this 40 acres is 
arable, at $1.25 per acre ; this 40 acres is timber, of commercial value, so much per 
acre for that ; and that 40 acres is, perhaps, grazing land ; and another 80 acres may be 
arid or be mesa land. In subdividing they run around the entire section, and they can 
form a pretty good opinion of the entire section from the observations they then make. 

Q. You would have this classification made by the deputy surveyor and the geologist 
appointed to go along with him, who would measure the streams and determine how 
much water there was in them annually, and then mark the limits to where the water 
could be carried ? — A. I think he could, determine that approximately by his eye. If . 
he made a mistake and it is not arable, still I should classify it as arable, for there is 
a probability of its being so. I require them to measure the streams uow, and their 
notes show everything—the depth, height, &c. 

Q. Suppose it should turn out that there is not water enough for all this land that 
you have determined to be irrigable, and you sell it to citizens of the United States, 
and it turns out afterwards #iat there is not enough water ? — A. Well, it is their look- 
out. If they buy something and pay .$1.25 for it, and it does not turn out as they ex- 
pected, it is their lookout. 

Q. But you classify the several pieces of land for the citizen ? — A. The citizen should 
go and make an examination beforehand. 

Q. If the government undertakes to sell a piece of land as irrigable, the government 
ought to know whether it is irrigable or not, and it takes the money of the citizen 
under the supposition that it is irrigable, does it not ? — A. They do under this system. 

Q. Suppose a man buys land low down on the stream as irrigable land, and pays for 
it ; along comes another man who buys land higher up and takes all the water. How 
would you arrange that ? — A. That is something I have never thought of. 

Q. What is your present law of water rights here ? Does the first man who occu- 
pies the land take all the water, returning such as he does not need to the stream 
again ? — A. Yes ; that is the local law here, I think. 

Q. Do you think that there will be any difficulty in adjusting these conflicting in- 
terests and conflicting rights? — A. There might be eventually, perhaps, something of 
that kind. You cannot have any general law that will not operate harshly iu some 
instances. When tihe government makes this classification of land I go down there to 
make my settlement near the mouth of a stream or valley. I take my chances of set- 
tlers coming in above me and absorbing a good portion of the water. That is some- 
thing I don't think you can regulate. You can only have a general rule that the 
water shall not be wasted. 

Q. Why should the government not sell a man the water right, when it sells him 
160 acres of irrigable land? It is known how much water is wanted for a certain 
quantity of land. Why not let this water right run with this land forever ? If the 
government finds that it has not enough water in the stream, let them stop selling the 
land as irrigable land, and sell the balance as pasturage land. — A. Perhapts that would 
be a good idea. I have not given that subject any consideration, and can only jump 
at a conclusion. 

Q. Do you think a general system of irrigation ditches could be constructed in this 
Territory with profit ? — A. I think they coiild in some sections — on the Pecos and Rio 
Grande Rivers. There is an immense area that can be irrigated there. 

Q. Does it destroy the land or improve it ? — A. Irrigation improves the land ; it en- 
riches the soil. 

Q. Does it increase or destroy the growing capacity of the land, year by year? — 
A. That I cannot say. They have raised here, for years and years, crops, without fail 
and without fertilization. 

Q. Don't the grazing capacity of the land decrease, year by year ? — A. That depends 
on the size of the herd. 



444 PUBLIC LANDS. 

Q. If the land is well stocked, does it not take more grass to graze that herd each 
year ? — A. Yes ; I think it does. 

Q. Are there conflicts between the sheep and cattle men ? — A. Yes ; all the time. 

Q. Where do you sell your stock ? — A. In Chicago, Kansas City, New York, Boston,, 
and England. It is driven right to the depot and shipped. 

Q. Can grapes be grown in New Mexico ? — A. Yes, sir. I think this Territory will 
be one of the finest grape districts in the country. It will be the Rhine of America. 

I should like to say a word about the Spanish-Mexican grants. There are about 140 
such grants filed in this office and others are being filed every year. Just how many 
exist I cannot state. They are coming in all the time. They date back into the six- 
teenth century. Now, I think the rights of the parties holding these grants should 
be settled and the remainder turned over as public domain, so that when settlers come 
in here they will know whether they are on government land or grant land, and the 
improvements they have made, often of value, will not be jeopardized. This should 
be settled immediately. There ought to be a limitation fixed by law for the filing of 
the claims and proving up. 



Testimony of W. H. McBloome, of Santa Fe, N. Mex. 

Santa Fe, N. Mex., September 3, 1879. 
W. H. McBloome, deputy surveyor, made the following statement : 
I think the system we have at present is very simple and effective. The permanent 
stakes of stone or iron would last longer than the wooden stakes which are used at 
present, and would be very much better, but they would probably cost more. If it is 
desired to reach a remote point from one whose position is known, and it is not desir- 
able to survey the county between the two points, triangulation can then be used to 
advantage. A much better grade of work would be done under the present system 
if the pay was better. There is not a sufficient amount paid for running the lines. I 
object to any change, because I think we are now getting the best possible survey for 
the money paid. It is simple and easily understood by the people. There are very 
few surveyors who run outside of the limits of error. We are allowed 300 links for 
error in townshipiog and 100 links in subdividing. The surveying could be made 
more accurate by cutting down the amount of allowed error 50 links and by increas- 
ing the price for the work done. 



Testimony of John C. Davis, register land office, Santa Fe, N. Mex. 

United States Land Office, 
Santa Fe, N. Mex., September 2, 1879. 
To the Land Commission : 

My duties as register of the land office at this place has called my attention to the 
land laws and their workings, to the climate, water supply, and the different grades 
into which the lands of this Territory are naturally divided. 

First. The greatest present want of the Territory is to have the private lands (which 
consist of Spanish and Mexican grants) segregated from the public domain, and to this 
end would recommend the immediate passage of the bill introduced into the Forty- 
fifth Congress known as Senate bill No. 376, limiting 'the presentation of claims to 
three years, and after that time forever barring them. This would leave the govern- 
ment 50,000,000 acres of land or more for settlement. This accomplished and a liberal 
appropriation for surveys we should get along very well with few exceptions under 
the present laws, but would recommend radical changes in the laws for the disposition 
of the public lands in this Territory, notably the repeal of the pre-emption law and the 
act of March 3, 1879, requiring notice and publication before final proof in homestead 
and pre-emption cases; would retain the homestead law with the pre-emption feature 
or right to commute, and increase the homestead privilege to 320 acres and allow any 
number of filings desired by the applicant, he each time surrendering his receipt with 
the proper relinquishment indorsed thereon, but would confine him to one final proof 
and patent. I would recommend the continuance of the desert-land act of March 3, 
1877, as well adapted to these people and country, and the construction of the law 
should be liberal. I see no reason why a man should be compelled to irrigate every foot 
of a section of land, when it will suit his purposes better to use it as a grazing farm 
and introduce water accordingly. 

Second. The physical characteristics of this Territory are such as to make a class* 
ification of the public lands a necessity; would recommend they be classed as arable, 






PUBLIC LANDS. 445 

irrigable, timber, pasturage, coal, and mineral lands ; the arable lands I would dispose 
of in tracts of, say, 3,000 acres at 10 cents per acre ; the irrigable lands, I see no reason 
they should not be sold at $1.25 per acre ; timber lands I would sell in 160-acre tracts 
at $2.50 per acre ; pasturage lands in unlimited quantities at 25 cents per acre. I am 
not prepared to say I would change the present coal-land laws. The mineral or mining 
laws should be greatly condensed and simplified ; miners' camps and local customs done 
away with; a law so plain everybody could understand it, and all initial and other fil- 
ings should be made in the district land office and nowhere else. The present area, 600 
by 1,500 feet, I think ample. 

JOHN C. DAVIS, Register. 






Testimony of John C. Davis, Santa Fe, N. Mex. 
(Copy of Senate bill No. 376, for ascertaining and settling private land claims.) 

Santa Fe, N. Mex., September 2, 1879. 

John C. Davis, register land office, made the following statement : 

Question. Have you any suggestions to make concerning improvements in the present 
method of surveying the public land ?— Answer. I think there might be improvements 
made. I should heartily concur with the suggestion that we have an expert, a geolo- 
gist, or any very competent man, with the survey and that the land should be properly 
classified and entered on the plats filed in this office, in order that the register might 
at a glance know just what kind of land there was in a township. As for these cor- 
ners, I would suggest that they should be made of some very durable material and put 
up in such a way that settlers could find the quarter-section coiners without trouble. 

Q. Do you have many complaints on that score ? — A. We have had a dozen men here 
who were at a loss to know whether they were on surveyed or unsurveyed land, and 
upon examination we found that the stakes had been destroyed. The result was that 
in order to determine where they were, they had to hire a surveyor at a cost of $10 per 
day. 

Q. Don't you think that the forms now used in homestead and pre-emption cases 
could be immensely simplified ? — A. I do. 

Q. Don't you think that pre-emption proofs, that is the entry, could all be combined 
upon one sheet of paper ? — A. Yes, sir ; I do. I think the three affidavits could be put 
upon one sheet. 1 think also that the provision about speculation, &c, is all humbug. 
The pre-emption act, too, ought to be abolished, as the homestead has already a pre- 
emption feature in it. It would simplify the matter very much. The amount of 
homestead land should be increased. I would make it 320 acres. 

I am decidedly opposed to the affidavits and notice of intention to prove up. I will 
show you an instance. Three Mexicans came in from San Miguel County, a distance 
of 150 miles, at a cost of $50 to $75 apiece, to prove upon their homesteads. I had to tell 
them, " There is a new law; you cannot prove up ; you must send me a notice, and 
then you can give me $5 or $10 to pay the expense of printing th#t notice for five weeks, 
and then you can come back and prove up if there is no adverse claim." I do not be- 
lieve that the affidavits or "notice " prevents perjury but increases it. 

There is another thing I should like to speak of. We have plenty of cases on the books 
here where homesteads were entered in 1870, and they stand intact on the books to- 
day. I wrote to these parties but I could not get any response from them. I could 
not cancel them although there were people who would like to have filed on the land. 
I cannot cancel them even now till I get notice and know what they propose to do. 
They probably moved out of the county years ago but the land stands on my books as 
occupied. The probability is that half a dozen men have been on the land in the 
mean time. 

Q. When you have the proof of the abandonment or relinquishment of ahomestead you 
send it to Washington, do you ? — A. Yes, and about a year from that time we get a 
return from Washington — the cancellation of the abandoned homestead. In the mean 
time the land is occupied by the person who has bought the home of the person who 
abandoned or relinquished it. That man ought to have the preference to anybody 
else and this is our ruling in the case of canceled homesteads, but that is not the rul- 
ing of the department. When the cancellation is made a certain time ought to elapse 
so as to allow the incumbent of the ground an opportunity to make his claim. Under 
the present law I must get a return from Washington before I can sell it. Now, I get 
a notice of cancellation ; a man comes in here and makes application for entry on that 
land ; I accept his entry but next week a man says I was living on that land before the 
cancellation was made and before that man filed on it, and he has never lived on it. 
In that case I should be inclined to think that the man who has lived on it should be 
entitled to the ground. But it is not law ; still I think it should be so. I know of one 



446 PUBLIC LANDS. 

case in Washington where a cancellation was made and a man was living on the 
ground, but another man slipped in and made the entry, thus depriving the man who 
lived on the land from making title, and the department ruled in favor of the man liv- 
ing on it. I think the right to cancel it ought to be in the hands of the register and 
receiver as they are the persons best capable of judging, as they are right in the local- 
ity. I think, too, that the register ought to be authorized to go*out of his office to take 
proof and testimony, especially here where the districts are so large. I had permission 
procured from the department to go down into Colfax County and it was of great con- 
venience to the people. It is very expensive for poor men to come away here in order 
to make their proof. 

In the case of pre-emption, settlers are allowed to prove up in six months, and they 
are also allowed thirty months. I think the register should be allowed to declare 
forfeited any pre-emption entry of thirty months' standing, the parties, of course, 
having received due notice. 

Q. What good reason is there why a man should not tile one-half dozen times until 
he makes at last a final entry and proves up ? — A. None. I think a man ought to be 
allowed the homestead privilege until he finally makes a permanent homestead. There 
is no damage done if he does not consummate his claim. I think he should be al- 
lowed to file till he gets a home, for this is the object of the law. 

There is a good deal of what we call agricultural land in this country, in our dis- 
trict. We have some fine rivers and bottom lands. There are large tracts of arable 
land that can be made useful by irrigation still left in this country all along the Pecos 
Eiver, and in the upper portion of the country, in the San Juan district, there is as 
fine farming land as there is in the Territory. There is plenty of water. I am told 
that in the Animas Valley the settlers have filled up the township. Irrigation, of 
course, increases the bearing properties of the soil ; at least it is said by those who 
pretend to know that it is equal to manure, and as an evidence there is land along 
the little Santa Fe" Creek that has had a crop of corn every year for 100 years, and 
there is no diminution in its fertility. 

Q. How much of the land in this district is pasturage land?— A. I should say that 
three-fourths of the land in this district is pasturage land, and about one-half of the 
total acreage of the Territory is in this district. If a man has 200 head of cattle he is 
bound to have 3,000 or 4,000 acres of land. Senator Dorsey owns all the springs on 
160 acres, and this controls the whole 10,000 acres back of it. I think he would buy all 
the land if he could get it for 10 cents per acre. I think there is much of the land here 
that ought to be sold for 10 cents per acre. I would grade the land at 10 cents, 50 
cents, $1, and $1.25 per acre. The classification on the maps would be the basis of 
this graded price. I would sell the pasturage land in as large quantities as the pur- 
chaser desired. If a man will take that land at any price you are pleased to name 
and put large herds of cattle on it, it is doing somebody some good, and perhaps there 
is no other way the land can be utilized. I think the men who are there now should 
be protected and have the first chance to buy land in proportion to their herds, other- 
wise the cattle men would be broken up. Twenty acres of land will do at one time 
and 30 acres at another time to support one beef. I do not think 30 acres too much as 
an average acreage for one beef. 

Q. Do you favor the pasturage homestead? — A. Yes; I would be in favor of the 
pasturage homestead giving 3,000 acres to each actual settler. There are some water 
privileges left, and there is land with springs on them. I believe as Mr. Atkinson 
does, that the Mexican and Indian should be protected in their claims by making 
smaller subdivisions. 

Q. What are your views in regard to the timber land ? — A. I would sell the timber 
lands in limited quantities. I would not give any man over 160 acres of timber land, 
but divide them around ; $2.50 an acre would be a fair price for timber land. I would 
protect the timber to the fullest extent possible. It would be well to make a limita- 
tion to the amount to be cut off, if you could enforce it; but I cannot see how you 
could. I would limit the quantity, that it might go to as many persons as possible. 
The registers and receivers in the various districts should have jurisdiction over the 
timber lands, as they have over every other class of land. He could stop depredations, 
&c, better than any one else. I think the law ought to be changed in that respect, 
and I think everything possible ought to be done to check the squandering and wast- 
ing of the timber. 

Q> What suggestions have you to make concerning the mineral lands? — A. I don't 
know much about the mineral lands ; but I think if a man has a mineral claim he 
ought to be allowed to follow the lode throughout its " dips, spurs, and angles." I 
think the register and receiver ought to receive the first filing of a mineral claim, and 
should exercise the same control over the mineral lands as he does over the other 
classes of land. In this Territory any number of men are allowed to make a mining 
district. I think that ought to be done away with. There ought to be one general, 
sweeping law regulating all mining matters. The present United States law allowing 
each man a mineral claim of 20.66 acres I think is sufficient. 



PUBLIC LANDS. 447 

Q. What have you to say in regard to sheep ? — A. Concerning sheep, I think five 
sheep equal to one beef. Sheep and cattle men are conflicting all the time. Blood- 
shed often results, and I think there will be more of if if the matter is not settled. I 
think it would be decidedly to the advantage of the whole country if these matters 
are settled at the soonest possible day. Cattle men say that sheep ruin the country by 
running over the range ten times as much as they do. My observation confirms this 
opinion. I have known beautiful ranges of grass utterly destroyed by the treading of 
sheep. 

Q. Can you suggest any improvement in the matter of water rights ? — A. I do not 
see how the water-right matter can be improved. Of course a man should be com- 
pelled to return to the stream all the water he does not use. In regard to the laud 
grants I would simply say that Senate bill No. 376, introduced at the third session of 
the Forty-fifth Congress, should be made a law at the soonest possible date. 



Testimony of N. Gales, merchant and miner, Rillsoorough, N. Mex. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1. 

1. N. Gales, merchant and miner, Hillsborough, N. Mex. 

2. Five years. 

3. None. 

4. I have had some experience in Minnesota. 

5. Uncontested case two years. 

6. I think the homestead and pre-emption law in its simplest manner as to entries 
and final proof is better than imposing so large an expense upon the oona-jide settler, 
as now seems to be the case. So large amount of proof papers, six weeks' advertising, 
&c, costs the settler money he is not able to bear, and but little good can result from 
this extra expense. 

7. Mineral and pastoral lands. 

9. I would suggest that no lands be surveyed except needed for use, such as the 
valleys for agricultural purposes and some lands that were needed around villages, 
which seldom are surveyed on account of smallness of tract. 

AGRICULTURE. 

2. September or October. 

3. None. 

4. One acre in 200,000. 

5. Corn, wheat, barley, and fruits. 

8. Richness has increased. 

9. Very little water here. 

10. All for mining purposes. 

11. None as yet. 

12. Nearly all. 

13. Six hundred and forty acres to the settler. 

14. Homestead only whefce it is not mineral. 

15. Five acres. 

16. One hundred. 

17. About five. 

18. About the same. 

19. No i 

20. No. 

21. Very limited. 

22. Seven. 

23. Diminished. 

24. Not very well. 

25. Very few here. 

26. One hundred to one thousand. 

27. I would suggest that the water courses be immediately surveyed, so men can 
improve their claims without infringing on others. 

TIMBER. 

1. Very little here ; what there is is on the mountains. 

2. No timber planted in this section ; no agricultural lands, all mineral. 

3. Cost more to survey the mountains than could be realized from the sales. 



448 PUBLIC LANDS. 

4. Only one class here ; few pines in the mountains. 

6. Fires will stop when the Indians are driven out. 

7. Very little timber here ; what there is is immediately needed for mining and 
building purposes ; no unnecessary waste, only by Indian fires. 

8. Custom is here to take timber wherever it can be found for actual use. 

9. We need no law to regulate the cutting of timber here. I have no interest many 
mill or the cutting of timber. 

LODE CLAIMS. 

I am interested in lode claims and think the laws are very good, which give general 
satisfaction here. 



PLACER CLAIMS. 



1. Gold mostly, some silver. 

3. Without contest, $300 ; with, $500. 



Testimony of William Kronig, farmer, La Junta, Mora County, New Mexico. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1. 

Public Land Commission, Washington, D. C. : 

Gentlemen : Having received a circular directing my attention to an act of Con- 
gress prescribing the duties of your honorable Commission and requesting replies to 
such interrogatories as may be within the range of my personal information, I comply 
with your request, and will give the most special attention to such questions as appear 
to me from my observation to affect this district particularly. 

1. My name is William Kronig; occupation, farmer; residence, La Junta, Mora 
County, New Mexico. 

2. Since 1849. 

3. I have not. 

AGRICULTURE. 

1. The cultivated part of Mora County varies from 6,000 to 8,000 feet in altitude; 
the rainfall is the greatest in and near the mountains, where frequently irrigation is 
not necessary to raise good crops. The length of seasons varies with the altitude, and 
in the higher portion frosts in the latter part of August are not of uncommon occur- 
rence. Our supply of water for irrigation depends upon the snowfall during winter 
and spring in the mountains, and agriculture without reservoirs islimited to the first and 
second river bottoms. The agricultural area can only be extended by a system of res- 
ervoirs, as, with few exceptions, there is hardly a season when we have a fair and suffi- 
cient supply of water for our growing crops. 

2. We have frequently light rains in the months of March and April, but our rainy 
season generally commences in the latter part of June and continues in showers dur- 
ing the months of July, August, and September, and sometimes later. The rains do 
the greatest part of good to corn ; for small grain they would be better earlier. 

3. Only a small portion of the valleys and glades (situated in the mountains) can be 
cultivated Avithout irrigation. 

4. One- fiftieth part can be cultivated by irrigation. 

5. Wheat, barley, oats, corn, pease, beans, tobacco, vegetables, and orchards. 

6. The land in common seasons is thoroughly watered before plowing. When the 
wheat has spread out and' covers the ground it is irrigated again, and the last irriga- 
tion applied when the wheat is in blossom. To give a correct estimate of the amount 
of water used is out of my power. To water 100 acres in this district a supply of about 
160 inches (miners' measure) is needed for the first watering for fifteen days; to water 
the wheat it will take about twelve days, and the third time about ten days. 

7. The sources of water come from our mountain streams, and the supply is alto- 
gether dependent upon the snowfall in the winter. The natural supply is in many 
seasons insufficient for the land now under cultivation, and only a proper system of res- 
ervoirs could increase the agricultural area. In this county we have now seven reser- 
voirs, and if this system should be enlarged (facilities are not wanted) thousands of 
acres could be made to yield good crops. The evaporation is immense, and if the people 
could be induced to set out trees on the streams and ditches the supply of water 
would be considerably increased. 

8. Irrigation has a beneficial effect on land generally, as the water contains salts in 
solution and also sediments from the mountains which serve as manure. In lands 
containing many salts (alkalies) irrigation will bring them to the surface and makes 



PUBLIC LANDS. 449 

them unfit for agriculture, but those are exceptional cases. Lands have been culti- 
vated in this Territory for one hundred and fifty years and upwards without any 
manure, and their whole system of rotation consisted in planting corn one year and 
wheat the next, and still these lands produce very fair crops. Wheat is grown up to 
an altitude of 7,500 feet ; potatoes and oats as high as 9,000 feet. 

9. Each main irrigation ditch has a foreman, who gives out the water either to those 
who need it most or by rotation for days, or even for hours in seasons of scarcity. 
Each ditch empties at its terminus into the river, but it depends entirely upon the 
season as to the quantity returned to the river. Our local laws are very insufficient 
to give each landholder a just proportion of water contained in the streams, as those 
who live near the sources of the streams take advantage of the water without having 
consideration for those living below them. 

10. It has been all taken up. 

11. lu dry seasons serious collisions among claimants. 

12. Forty-nine-fiftieths. 

13. In my judgment homesteads on pastoral lands should be divided into three 
classes. To those who locate on streams where only a small portion of the land can 
be irrigated, 320 acres should be allowed. Those who depend on springs, permanent 
water holes, or lakes, from which no water can be obtained for irrigation, should be 
allowed 640 acres. Those who live remote from any water course, springs, permanent 
water holes, or lakes, and where water only can be obtained by digging wells, should 
be allowed 1,280 acres. 

14. Lands situated on water- courses, and subject to private entry, should be limited 
to a section to each purchaser in a square body, according to legal subdivision. On 
pasture lands remote from any water course, where water can only be obtained by 
sinking wells, one township. 

15. It would take in this section 10 to 15 acres of pasture land to raise one beef, and 
I believe it would be a fair average of this Territory. 

16. Sixty head. 

18. Where cattle are only permitted the grass has held its own. Where goats and 
sheep are grazing, it has diminished. 

19. Up to the present very little fencing has been done. Cattle ranging on the prai- 
ries in storms would seek shelter in timber and would break through any ordinary 
fence. 

20. Cattle will do better on their accustomed ranges than to move them from place 
to place. 

21. Streams, lakes, water holes, and springs. 

22. Four sheep are equivalent to one beef in eating and destroying the grass, as 
they generally range in herds from 2,000 to 4,000 head. 

23. Diminished. 

25. A constant strife between the different owners, as cattle will not do well where 
sheep are herded. 

26. I cannot answer the first question. Sheep are herded in bands from 2,000 to 
4,000 head, and cattle from 50 to 3,000 head. 

27. I am not familiar with this subject. 

28. No. 

TIMBER. 

1. The timber lands of Mora County are about one-third area— pine, red and white 
spruce, piQon, white and red cedar, oak, cottonwood, and aspen. 

2. None worth mentioning. 

3. I consider it best that the mountain timber lands should remain public domain, 
as the agriculture of New Mexico depends upon the supply of snow which accumulates 
during winter and early spring, and if the mountains should be deprived of ther tim- 
ber, which would be the case if sold, the snow, losing the protecting shade of the 
evergreens, would come down in torrents, and the water supply would be exhausted in 
the beginning of the season. In view of the fact that the greater part of the mines 
are situated in timber lands, limited amounts might be sold in lots of 40 acres, with a 
limited time for clearing. Due notices of a proposed sale should be published, specify- 
ing the location and extent, inviting bids for each lot of 40 acres, reserving the right 
to reject any and all bids for the same. 

4. I would not. 

5. There is a second growth of timber, but extremely slow. 

6. The forest fires aie generally caused by carelessness, and sometimes are started by 
Indians. There is a heavy penalty imposed by Territorial law, but I am not aware of 
any charges under the law. Miners and farmers use the public timber on public 
lands as common property, and there is not much waste from this source. Depreda- 
tions committed in supplying saw-mills and cutting railroad ties have not come under 
my observation. 

29 LC 

\ 



450 PUBLIC LANDS. 

8. The local custom is to help yourself to what you want for fuel, fencing, and build- 
ing purposes. The question of the acts of corporations I am not familiar with. 

9. I think it would. 

Eespectfully, your obedient servant, 

WM. KRONIG. 



Testimony of William McMullen, civil engineer, New Mexico. 

Public Land Commission, Washington, D. C. : 

Gentlemen : Having received through the office of the surveyor-general of this 
Territory a circular directing my attention to an act of Congress prescribing the duties 
of your honorable Commission, and requesting replies to such interrogatories as may 
be within the range of my personal information, I will cheerfully comply with your 
request, and will give the most especial attention to such subheads as appear to me 
from my observations to affect this Territory particularly. 

1. My name is William McMullen, civil engineer. 

2. I have lived in the Territory since 1862 — seventeen years. 

3. I have never acquired, or sought to acquire, title to any of the public lands of the 
United States. 

4. My impressions are formed from observations that have come to my notice while 
engaged as civil engineer, United States deputy and mineral deputy surveyor. 

7, The surveyor-general's office can doubtless furnish the most extended and relia- 
ble information in reply, although the description given in the notes returned by the 
deputies who executed the earliest surveys in the Territory are in some cases very de- 
fective. I will hereafter refer to an instance. 

AGRICULTURE. 

14. In my judgment the lands put in market for private entry should be limited in 
quantity to each purchaser. It is a common practice in this Territory to enter the 
smallest legal subdivisions bordering on streams, with a view to speculation and to 
secure the public land adjacent thereto for grazing purposes without purchase. A 
notable case is that of Wilson Waddingham in his entry of land bordering on the 
Canadian River, and Ute Creek. See his advertisement hereto attached : 

[Las Vegas Gazette.] 

"Waddingham post-office, LaCinta, San Miguel County, N. M.; range, Montoy's Grant 

N. M. 



"All persons found tresspassing by herding sheep or cattle on Ute Creek within 
boundaries of the mouth of said creek and for a distance of sixteen miles on both sides 
said creek, and also on Canadian (or Red) River from the boundary line of the Baca 
location No. 2 for a distance of sixteen miles on both sides down said river, will be 
prosecuted according to law. 

"WILSON WADDINGHAM." 

Another notable case is that of the private entry of land in townships 14 and 15 
north, range 8 east, known as the Cerrillos mines. This, however, presents a different 
question. The United States deputy who executed the survey failed and neglected 
to report any mineral indications, giving only a meager discription of the same, al- 
though many old excavations for mining purposes were plainly visible at various 
points. A large portion of this land has been entered by different persons at private 
entry, and includes what is supposed to be the best mines. This has caused delay in 
developing the mines, and time only will reveal what other difficulties will arise 
therefrom. 

28. Yes. This I will notice hereafter. 

PRIVATE LAND GRANTS. 

The prompt settlement of title to private land claims is a question of the utmost 
importance to this Territory. The delays attending the present system were stated in 
Congress last winter by Hon. Mariano Otero, our present Delegate. Unless some measures 
are adopted to facilitate a settlement of this question, the claimants or heirs cannot hope 



PUBLIC LANDS. 451 

to realize much benefit from their possessions ; the majority are poor and unable to fee 
an attorney to prosecute their claims, and are therefore compelled to dispose of the 
greater part of their lands to obtain title to their small homesteads, or to sell out their 
claims for a mere trifle. This opens a field for capital to monopolize large tracts of the 
best land in the Territory. I might cite many reasons which present themselves to 
my mind why land monopoly should be checked, bnt it might appear presumptuous 
in me to do so ; I will, however, remark that nearly all these grants are located on 
water courses and extend in many cases to the sources of the streams which rise in the 
mountains. The private claim of many miles on a stream of water from its source 
would be a serious obstacle to enterprise, which might seek to divert water from its 
natural channel to irrigate distant table lands or to prosecute mining operations. In 
my opinion, every facility should be afforded to enable the grantees or their heirs who 
are actual settlers to perfect their title without delay. 

I would not be understood, in recommending increased facilities to grantees or their 
heirs whereby they might be enabled to retain their proportion of large grants, as 
making any exceptions to those who have acquired title by purchase. 

The interest of the Territory, including all classes, demands a prompt settlement of 
title to private lands, and their segregation from the public domain, without cost to 
the claimants, as stipulated in the eighth article of the treaty of Guadalupe Hidalgo. 
Until this is done, settlement and improvement will be retarded. 

Sales of private land by the government have caused hardship ; also distrust of title 
to lands offered as public lands. This cannot be avoided until the private lands are 
segregated from the public domain. 

The description of boundaries generally given in the title papers to private land 
grants are extremely vague and indefinite, and notwithstanding the most diligent in- 
vestigation and thorough examination of testimony, the result is often obscure and 
unsatisfactory. Landmarks named or designated as boundaries, such as hills, springs, 
mesas, arroyos, &c, are sometimes found to constitute the boundary on a different side 
from that named in the description. The distances from point to point, as estimated 
by witnesses in proving title, are seldom approximative. 

When the deputy surveyor enters into a contract to execute the survey of a private 
land claim he receives his special instructions from the surveyor -general, based on the 
record filed in his office, including a copy of the plat filed by the claimants or their 
representatives. As the records are known to be unreliable, the deputy is instructed 
to notify the claimants or their representative of the time when he will be prepared 
to run the boundary lines to the claim, and request the attendance of his witnesses to 
establish the same. The testimony of the witnesses is required to be taken before and 
certified to by a civil officer who is authorized to administer an oath : the deputy is 
required to establish the boundary lines on this testimony, his own observation of the 
boundary calls, together with the special instructions, and if any discrepancies occur 
in conflict with special instructions he is required to explain why the deviation was 
made. This is not always satisfactory to the surveyor-general, and I will add, nor is 
it to the deputy himself. Sometimes the deputy is instructed to return and change 
some part of the lines established. I entered a note in the general description of the 
survey of the " Cueyamungue grant," situated in Santa F6 County, which I executed 
under the contract of Griffin & McMullen, dated August 10, 1877, in which I comment 
upon the difficulty of complying strictly with special instructions. Your attention is 
respectfully invited to the same. 

I would suggest as a remedy that a commissioner be appointed with authority to 
administer oaths and to compel the attendance of witnesses, whose duty it shall be to 
go upon the ground and to summon such witnesses as he may think proper, to identify 
the boundary calls of the claim and to file the testimony taken by him in the office of 
the surveyor-general, whereby definite instructions could be given to the deputy sur- 
veyor, and the approximate extent of the boundaries known. 

I would also suggest that claimants or their representatives be supplied with a copy 
of notes or plat of survey on application to the surveyor-general, and the payment of 
the cost of copying. Without this information the claimant cannot determine whether 
he will accept the boundaries established or make an appeal for a change or correction 
of any part of the same. 

LODE CLAIMS. 

1. My information on lode mining is very limited, and confined to observation mostly 
in this Territory. 

2. The principal defect appears to me to be the recognition of State, Territorial, and 
local regulations. 

3. Such a case has not come within my observation. 

4. The top or apex I understand to be the summit, comb, crest, or highest point on 
the ridge of a vein or lode. The top or apex, the course and angle or direction of tho 
dip, cannot always be determined in the early workings of the veins or lodes. 



452 PUBLIC LANDS. 

5. The intended rights of a discoverer are not properly defined, and cannot be pro- 
tected while local regulations control the conditions of location. 

6. Yes. 

7. No. 

8. My observations have been confined to the early working of lodes. 

9. I have not observed any outcrops of lodes wider than the legal width of claims 
as defined by these several authorities. 

10. The outcrops of narrow lodes sometimes deviate so far from a straight line as to 
cross side lines which are run straight. The outcrop seldom extends throughout the 
length of a claim, and side lines are sometimes laid off on angles from float indica- 
tions of the course of the vein. 

11,12, 13, and 14. From information gathered from Lead ville miners, and from having 
read some of the decisions rendered by the courts, I do not feel justified in expressing 
an opinion on those points. 

15. In this Territory on two occasions, viz, at the Moreno mines in Colfax County 
in 1866, and at the Cerrillos mines in Santa ¥6 County in March, 1879. To organize 
the Moreno mining district a meeting of the miners was held at Elizabethtown in com- 
pliance with a request of many miners duly circulated, which meeting was attended by 
about 40 miners. A, committee was appointed to draft rules and regulations governing 
the locating and working of claims ; also, to define the boundaries of the district. 
The report of the committee having been duly considered and adopted, a recorder was 
elected, who was required to keep a record of all miners' meetings, and to record all 
notices of mining claims presented to him for record, on the payment of a stipulated 
fee, &c. In a short time after the organization, in a dispute over a mining claim, one 
of the parties notified the other that a miners' meeting would be called at a specified 
time to decide the question. The meeting was held, and decided in favor of the orig- 
inal locators. The "jumpers" declined to accept the decision, and called another 
meeting, which decided in their favor, as many of the miners declined to attend a 
second time when they had already given a decision. It was then proposed to carry 
the case into court, and the party was advised that a suit could not be maintained, 
except through a lease of the title of the grant owner, in whom the title was vested. 

The Cerrillos mining district was organized on the 27th day of March, 1879, at a 
meeting of all the miners known or supposed to reside in the district, some eight or 
nine in number. The rules and regulations, based upon the mining laws of Colorado, 
were proposed, discussed, and adopted after general discussion, and the boundaries of 
the district defined by the lines of public survey — townships 14 and 15 north, ranges 
7, 8, 9 east. A recorder was also chosen, whose duties were defined in the regulations, 
viz, to provide the necessary books in which to enter the proceedings of all miners' 
meetings, the record of mining claims, deeds of transfer, and also to supply certified 
copies of the record on application of parties interested and the payment of a stipu- 
lated fee, &c. No other officer elected. 

A few days after it appeared that a district had been organized within the limits of 
the Cerrillos mining district prior to the 27th of March, 1879, and called the Galisteo 
district. Each district ignored the existence of the other, and the Territorial law 
specifies that every mining claim shall be filed for record within ninety days after lo- 
cation, and that no other record shall be required. 

16. The general method of locating a claim is to post a notice describing the loca- 
tion, giving the supposed course of the lode, and the distance from the notice claimed 
in either direction ; also, the width on each side, the names of the locators, and the 
date of locatiou. The record is a matter of after- consideration, and by some ignored 
entirely, those who claim that evidence of possession and continuous or periodical 
working of the claim in accordance with local regulations renders recording unneces- 
sary. There is usually no time specified withiu which a claim shall be recorded under 
local regulations. Parties making locations with a view of speculation, or of selling 
their claims, secure a certificate of their locations by recording notices as evidence of 
their title, which is sometimes questionable. A local record is, however, advantageous 
for reference, that strangers and others may ascertain the situation, and who are the 
claimants and what are their respective interests. It is, perhaps, needless to say that 
the conflict between the Territorial laws and local rules and regulations creates much 
confusion. 

17. I am not aware of any provision for amendment, Territorial or local. 

18. No. 

19. Yes. 

20. Yes. 

21. I "consider it desirable to retain the leading features of the United States mining 
laws," and I "believe that the practice of following the dip beyond the side line of a 
claim" can be satisfactorily maintained by drawing and defining the distinction be- 
tween a lode and a deposit. I would favor a repeal of the authority delegated to 
States, Territories, and local mining districts, and embrace within the United States 
law the necessary details of locating and recording claims. The leading features of 



PUBLIC LANDS. 453 

the details I view as follows : 1st. What shall constitute a legal notice ? *2d. How 
many days will be allowed to mark the boundaries, and in what manner they shall be 
marked ? 3d. The time within which a vein or mineral shall be exposed and a notice 
of the location filed for record. 

22. I would suggest that a possessory title be limited to three years, and that an ap- 
plication for a patent be admitted at anytime within three years after an expenditure 
of $300 in developing the mine. 

PLACER CLAIMS. 

In my opinion placer mines are far more extensive in this Territory than most peo- 
ple suppose them to be. It would be difficult to form anything like an approximative es- 
timate of their extent. They are but ittle sought for, as the scarcity of water precludes 
their working with profit. I am not aware of any lode claims or non-mineral land 
having been acquired under the placer law, and have no amendment to offer except to 
annul all local jurisdiction. 

PUBLIC SURVEYS. 

The theory of the system of public surveys under existing laws, as I understand it, 
viz, the extension of all " standard parallels" and "meridian lines" to be made from 
the "principal meridian" and the "base line," is unexceptionable. The exigencies 
arising from small appropriations to meet the demand of settlers located at points dis- 
tant from the lines extended therefrom has rendered it necessary to resort to expedi- 
ents to accommodate settlers, which mars the symmetry of the lines and involves 
questions, an instance of which I will hereafter refer to. The extension of the stand- 
ard lines affords the means of ascertaining the general topography, geological for- 
mations, characteristics of the soil and products; without this information an esti- 
mate of the proportion of the various classes of land can only be a haphazard guess. 
It would also enable the surveyor-general to locate the most important subdivisions 
and the settlers at remote points to have their lands subdivided by making special 
deposits, as provided by existing laws. In this connection I may add that the segre- 
gation of private lands from the public domain is necessary to prevent the expendi- 
ture of public funds in subdividing private land. A glance at the map will show that 
many thousands of dollars have been expended in that direction. 

The manual of instructions needs a thorough revision, which is doubtless well un- 
derstood by the honorable Commissioner of the General Land Office. I will, however, 
recommend that the practice of establishing corners on prairie land by pits and mounds 
be discontinued. The mounds are often obliterated in a«very short time and under 
the most favorable circumstances cannot be distinguished after a few years. A single 
stone of the minimum dimensions or a mound of stone should be substituted. Posts 
in mounds in timber land may be traced by bearing trees. 

I would respectfully invite attention to the clause in the manual which leaves The 
responsibility of the legality of the special instructions of a surveyor-general on his 
deputy. (See case of Deputy William White under contract with Surveyor-General J. 
K. Proudrit in 1872.) 

The surveyor- general should be responsible for his instructions and the deputy 
should be required to follow them. Also when a deputy closes lines beyond limits in 
connecting with old or previous work, he is required if necessary to retrace the old 
lines to discover the error. If the error is found in the old work there is no provision 
for compensation for this extra work. 

The present rates are too low to remunerate a deputy who will do his work thor- 
oughly. Expenses, cash at 18 per cent., risk of stock, delays on account of weather, 
and other contingencies, are apt to leave on settlement very little compensation. 

May, June, September, October, and November are the most favorable months in 
the year for field operations. 

Respectfully, your obedient servant, 

wm. Mcmullen. 



Testimony of George R. Pradt, United States deputy surveyor, Laguna, Valencia County, 

New Mexico. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1. 

Answers to the accompanying questions of the Public Land Commission, under the 
proper subheads and numbers. 

GENERAL. 

1. George H. Pradt ; Laguna, Valencia County, New Mexico ; United States deputy 
surveyor. 

2. I have lived in this county three years ; in New Mexico seven years. 



454 PUBLIC LANDS. 

3. I have not acquired, nor sought to acquire, title to any of the public lands. 

4, 5, and 6. I have not had experience enough on these points to give any useful 
information. 

7. The Territory of New Mexico is an elevated plateau, with extensive plains, desti- 
tute of timber and water, but affording good pasturage; probably nine-tenths of the 
public lands are of this character. The mountain ranges, of which there are three 
systems, extending across the Territory north aud south, are, with their spurs, all 
heavily timbered, except in the southern portion, and they comprise nearly all the 
timbered lands. The agricultural lands are confined principally to the valleys of the 
larger streams, though small isolated tracts occur in the mountains. The soil of the 
plains, however, is generally very fertile wherever water can be got for irrigating. 
Very little is known as to the extent of mineral lands, though minerals are known to 
exist in all parts of the Territory, and coal especially is very widely distributed. There 
is very little swamp land in the Territory. 

8. I think the public lands can best be classified by requiring deputy surveyors, 
under the present system of surveys, to examine (in their township and subdivision 
surveys) carefully aud minutely as to the character of the tracts surveyed, noting the 
different classes, the kind and position of the country rocks, the climate, natural prod- 
ucts, approximate elevation, and to give any other information tending to throw light 
on the subject, and a description based on these reports could be furnished by the sur- 
veyor-general, including all the lauds surveyed in his district during each year. 

9. The present rectangular system of public-land surveys seems to be the best, on 
account of the cheapness and rapidity with which the work can be done, and because 
under it any parcel of public land, however small, can be readily found and identified 
from its number and designation. The surveys may be carried across mountain ranges 
by tri angulation, and the subdivision surveys in very broken, mountainous regions 
should be so modified that the lines of survey could be taken through the valleys. 
Observations for latitude might be made at the initial point of surveys and at stated 
intervals along the principal meridian, base-line, and other standard lines, and where 
a telegraph line enters or crosses the district. Longitude stations could be established 
at one or more points. If increased accuracy in establishing township and section 
corners is desired, the limit of error allowed under present rules and regulations might 
be reduced one-half, for the improved instruments now in use will allow of such cor- 
ners being established with much greater accuracy than is required by the laws. The 
subdivision of the whole of the public domain into sections under additional regula- 
tions and requirements would furnish the basis for a series of minute and accurate 
maps, at a very moderate cost and in a much shorter time than by any other method. 
I have been engaged in public-land surveys during thirteen years ; also to some extent 
in railroad, private land-grant, and other surveys. 

10. Pasture lands should be offered in larger quantities to actual settlers for stock 
purposes than under the present laws, and settlers should be allowed to locate irregu- 
lar tracts of farming land where they occur among the mountains, instead of being 
required to locate in rectangular lots. 

AGRICULTURE. 

1. The climate of New Mexico is mild, with long summers and short winters, vary- 
ing somewhat on account of differences in altitude. Kain is confined to the summer, 
the wet season usually extending from the 1st of July to the 1st of September. Spring 
opens in February, and is marked by strong, steady winds from the west and north- 
west and little or no rain or snow. The summer is long and hot, and bright, warm 
days, with cold nights, continue through the fall and until the middle of December. The 
winters are mild and the snowfall occurs in January and February, usually in small 
quantity. Water for irrigating is taken from the streams, swelled in June by melting 
snow in the mountains and in the summer by the rains. 

2. Rain falls in July and August, sometimes in very heavy showers, aud furnishes 
moisture sufficient for all crops for about two months. The rain comes at the time it 
is most needed, but not early enough for the best results. 

3. Very little land in the Territory can be cultivated without irrigation except 
among the mountains, where the extent of arable land is limited to narrow valleys. 

4. Probably one-half of the public lands could be cultivated were water for irriga- 
tion available, but the proportion that can be watered from existing streams and 
springs is small. 

5. The crops raised in this vicinity by irrigation are wheat, oats, barley, corn, beans, 
melons, &c. Fruit-troes and vines are also watered. 

ti. Probably a ditch 2 feet wide and 4 inches deep, flowiug 2 miles an hour, would 
be enough to water 100 acres of wheat. 

7. The source and supply of water for irrigation is in the rivers and springs, and 
in many places reservoirs could easily bo made, to gather the surface drainage during 
the rainy season in sufficient quantity for the needs of the dry season. 



PUBLIC LANI}S. 455 

8. The water taken from muddy streams undoubtedly fertilizes the soil, and I do not 
think judicious irrigation is ever injurious. I have seen good crops of wheat, barley, 
oats, and potatoes, at an elevation of 8,500 feet, about the 35th parallel of north 
latitude. 

9. Most of the cultivated land in this region is sandy, and there is a loss in the 
ditches and in watering the fields of at least one-half the water used. The whole 
business of constructing ditches and irrigation and the care and distribution of the 
water are under the Territorial and local laws and regulations. 

10. Water has been taken out along all the streams of any size, under the Territo- 
rial and local laws and under the supervision of ditch overseers, who are chosen by 
the people of the several precincts. 

11. Conflicts sometimes arise when parties on the upper part of a stream use more 
water than they are entitled to or waste what they have taken out, causing a scarcity 
below. 

12. In its present condition, without wells or reservoirs, about nine-tenths of the 
public land is fit only for pasturage. 

13. I know of no reason why pastoral homesteads should not be allowed, with 
the privilege of locating, say, one-fourth of a township, or between 5,000 and 6,000 
acres. 

14. These pasture lands should be put upon the market as fast as surveyed and sold 
in large quantities for stock purposes. 

15, 16, 17, 18. I am not sufficiently acquainted with the stock business to give reliable 
information on these points. 

19. Cattle raisers do not fence their ranges, but cattle could be safely confined by 
fences at all seasons. 

20. The quality of the herd would undoubtedly be improved by being confined to a 
certain limited range. 

21. Stock water is obtained from springs, wells, and reservoirs. 

22. I think one sheep will destroy as much grass as one beef. 

23. Grass in the country has diminished or disappeared wherever sheep have been 
herded, and a considerable part of the public lands have been ruined in this way. 

24. Neither cattle nor horses will graze after sheep. 

25. Owing to the destruction of the grass by sheep, cattle men always try to keep 
them away, and quarrels often arise. 

26. Valencia County contains about 250,000 sheep and perhaps 40,000 cattle. Sheep 
are herded in flocks of 2,000 to 3,000 and cattle in bands of 200 or 300. 

27. The public lands ought to be surveyed as soon as possible and classified, so that 
depredations on timber lands could be stopped and for the convenience and benefit 
of all who are looking for locations on the public lands, as farmers, stockmen, 
miners, &c. 

28. The corners of surveyed lands in this vicinity are all perpetuated by stone 
monuments, and there is usually no trouble in finding any of them, though they are 
sometimes destroyed by sheep-herders. I have found and identified public-survey 
corners in this region that were established more than twenty years ago. 

TIMBER. 

1. The timber lands of this county lie in the western part, and cover about one- 
third of the public lands of this western part. The great bulk of the timber in the 
mountains is yellow pine, and the foot-hills of the mountains are covered with a very 
extensive growth of juniper and pinon, generally only useful for fuel. 

2. No timber is planted in this section. 

3. Public timber lands might be leased for a limited number of years, and the cut- 
ting of timber on such leased lands controlled by regulations to prevent any portion 
from being entirely denuded. 

4. It would be unnecessary to classify timber lands in this section, except so far as 
to distinguish that which is Valuable for manufacturing purposes from that which is 
only fit for fuel. 

5. When forests are felled or burned, a growth of aspen or scrubby oak, or both, 
springs up, and after several years, when they have attained sufficient growth to afford 
shade and shelter, the pines again start ; but they are of slow growth, and some 
mountain slopes that have once lost their large timber remain permanently bare, and 
I am satisfied that diminished rainfall and failure of water in the springs result. 

6. Forest fires are started by herders, through carelessness or to burn the dry grass, 
and by wandering Indians, through mischief or to drive the game together. These 
fires occur every year in all parts of the Territory, and sweep over extensive tracts, 
causing irreparable damage. A careful oversight and frequent inspection of forests 
would no doubt prevent the greater part of this destruction. 

7. In this Territory the depredations on timber so far have been confined to a few 
saw-mills of small capacity, and some little cutting of timber for mining purposes ; 



456 PUBLIC LANDS. 

but the extensive cutting of timber for railroad ties or fuel for locomotives, or for 
mining or building purposes, causes great waste, and should be regulated by national 
legislation, and the necessary laws enforced by appropriate penalties for these depre- 
dations. 

8. In this section timber is cut wherever it is most conveniently found, and felled 
timber is always considered the property of whoever cuts it. 

9. The timber laws would, in my opinion, be most efficiently executed by officers 
connected with the respective district land offices, and a sufficient number of such 
officers should be appointed in each, land district to keep up a constant oversight of 
all the timber lands. 

LODE CLAIMS. 

1. I have made preliminary locations, of lode claims, but know very little about 
mining or litigation about mines. 

2. There are in some parts of the mining laws apparent ambiguities that are taken 
advantage of to make litigation affecting titles, and many quarrels and lawsuits result. 

3. After a survey of a lode claim has been approved and placed on file, no subse- 
quent survey should be allowed to infringe upon it, except after a contest in proper 
form has been carried through, an adverse decision rendered, and the first survey can- 
celed. 

4. I understand the top or apex of a lode to be the upper edge : that part which is 
first reached or passed in developing the mine. Often the apex cannot be found 
throughout the length of the claim, nor the course nor dip of the lode determined 
except after very extensive and costly explorations. 

5. It does not seem that the intended rights of the discoverer are as clearly defined 
as they might be by the mining laws. 

6. I have heard of numerous cases in which litigation and injustice have sprung 
from the impossibility of determining these points. 

7. 8. I have heard of such contests, but not how they resulted. 

9. I do not know of any such instance. 

10. Such is often the case where the side lines are required by local laws to be 
straight. 

11. Locations may be made of alleged lodes on non-mineral ground, to secure the 
monopoly of a water supply or of ground suitable for building, causing injury to ~bona- 
fide locators. 

12. I have heard of repeated cases like that of A and B, in which A's title was 
clouded and he put to expense and trouble. 

13. So far as I can learn these cases are very frequent. 

14. From what I have learned of mining operations I do not think it possible to re- 
tain in the raining laws any provision by which locators can follow the dip of their 
lodes outside of their side lines without constant disputes. Two men will often locate 
separate veins near each other that, upon being followed down, will run together, mak- 
ing one vein under the surface, and one locator will claim the consolidated vein by 
priority of location, while the other claims that Ms vein is the true lead and the first 
only a feeder or spur. 

15. I have assisted in organizing a local mining district near the Pueblo of Laguua, 
Valencia County, New Mexico. About twenty men participated, not necessarily miners. 
The officers elected were a president, to call and preside over meetings ; a secretary, with 
the ordinary duties of secretary; a recorder, to keep a record of all locations and trans- 
fers of claims and to issue certificates of records, which were proof of title; and a mar- 
shal, to enforce the district laws and rules. 

16. In locating an original claim, the locator posted a notice at the point of discovery, 
stating the time of discovery, direction, and distance claimed from discovery stake, and 
within thirty days marked the boundaries of his claim by stakes at the corners, and had 
the claim recorded, receiving a certificate of record. 

17. The record could not be subsequently altered, and the certificate, embodying a 
copy of the record, was a check against fraudulent changes in the record books. 

18. I have not known of any such cases. 

19. It would be advantageous in my opinion to abolish all local mining-district laws 
and records, and have the initiation of record title placed only with the United States 
land officers. 

20. The adjustment of all questions and contests touching mineral lands should be 
left to the proper federal officers, and not to the courts. 

21. In view of the constant litigation under the present laws, a locator should be al- 
lowed to claim only what is iucluded within the planes drawn perpendicularly down- 
ward through both side and end lines of his claim. 

22. A locator should be obliged to acquire title within three years. Under the pres- 
ent laws a mine can be held by a possessory title, worked out as far as possible, and 
abandoned. 



PUBLIC LANDS. 457 



PLACER CLAIMS. 



1. There are no placer mines in this section. 

2, 3, 4, 5, 6, 7, 8, 9. I have had no experience in placer mines, or in the operation of 
mining laws governing the location of placer claims. 
Laguna, Valencia County, New Mexico, October 23, 1879. 



Testimony of George H. Pratt, Santa Fe, JV. Mex. 

Santa Fe, N. Mex., September 2, 1879. 

George H. Pratt, United States deputy contract surveyor, made the following 
statement : 

I consider the rectangular system a very good one. I do not know of any way it 
can be improved, except in the way of accuracy. In subdividing townships into sec- 
tions an error of one chain is allowed in the length of a mile, and an error of 3^ chains 
is allowed to three townships. If increased accuracy is wanted I think that allowance 
might be cut down. I think it is too great an allowance. I know that surveyors come 
far within these limits in making their surveys. 

Question. Cannot most of the deputy surveyors run a solar transit ? — Answer. Yes, 
and most of them do. 

Q. Have you any suggestions to make as to triangulation ? — A. I think the use of 
triangulation for the purpose of passing over barren spots or mountains is a very good 
thing. I was just looking at a case on the map where the cross-line was traced some 
120 miles, and about 70 miles of it was not located on the ground, on account of the 
rough country. It was located by making transverse lines — in some instances .12 
miles — with the compass and chain. It was utterly impossible to locate points with 
the accuracy of triangulation. I think time monuments would be very desirable. 
Tbey would be very useful for reference, and would make greater certainty in the sur- 
vey than now exists. It is also desirable to have permanent stakes. Wooden stakes 
soon decay. They will last for five or ten years if the cattle do not knock them down. 
Stone monuments would last much longer. I think it would be well to have perma- 
nent monuments at every fourth township corner. Owing to the loss of the corner 
posts resurveys have frequently to be made, at great expense to the settler. If per- 
manent monuments were there the settler could walk north, south, east, and west and 
find the boundaries of the land. I think that the principal meridian and base and 
correction lines ought to be established with greater care, and the initial points de- 
termined astronomically. I do not think deputy surveyors are paid enough to pre- 
vent them hurrying through their work in order to make more money, and the result 
is a poor class of work and a great deal of inaccuracy. My experience in mining sur- 
veying has not been very great, but I think that endless litigation would be avoided 
by the square mining location. The amount of land allowed in the United States law is 
sufficient, and I think that all local mining laws should be abolished and the United 
States law used instead. I think it would simplify matters very much to have every- 
thing relating to mines in the hands of the registers and receivers, and I can see no 
good reason why the government should not hold on to its mineral lands as well as its 
agricultural land. 

Q. Is there much mineral land in this Territory? — A. Yes; there is a great deal of 
mining land here. I have seen great areas covered with quartz ; and there is a great 
deal of coal here too. 

Q. What do you receive for surveying? — A. I have surveyed in Arizona, Kansas, 
Indian Territory, New Mexico, and California under the United States system, and we 
receive $6 for subdivision, $8 for standard lines, and $10 for meridian lines. I do not 
think that is enough, to do it as it ought to be done. We use monuments of stone, 
with chisel marks cut in them. The chisel marks are required by law. Most survey- 
ors prefer to use stone — though they can use stakes if they wish to — because they are 
more permanent. I have retraced lines run twenty-five years ago in this Territory, 
and there was no difficulty in finding the corners where they were marked with stones. 
The only cost of these monuments is a man and chisel. 

Q. Do you use the solar compass ? — A. Yes ; we use the solar compass. It is gener- 
ally used in the Territory by the deputy surveyors who take contracts ; but no man 
uses the solar compass all the time. I would not use any other, however, on such sur- 
veys as these. 

Q. On the score of cheapness, which would be best, the present system or the one of 
establishing these corners by triangulation ? — A. I think there is no doubt that the 
present system is far cheaper than to establish them by triangulation. 

Q. What have you to say of the timber lands ? — A. All the timber lands here are 



458 PUBLIC LANDS. 

being destroyed, a great deal by persons who come in with saw-mills. I think the tim- 
ber lands ought to be put under the jurisdiction of the register and receiver and some 
effort made to protect the timber, for when the miners go in they will sweep the tim- 
ber from all the mountains in the Territory in a few years, as they are doing in Col- 
orado ; and, as the growth is slow, it will take a long time to replace it. 



Testimong of W. G. Bitch, Santa Fe, N. Mex. 

Santa Fe, N. Mex., September 3, 1879. 

W. G. Ritch, secretary of New Mexico, made the following statement : 

I am very much of the opinion that the general land system of the country, as known 
to the country at large, is not applicable to the land west of the 100th meridian. If 
the man that is here finds a spring that is capable of maintaining 5,000, 10,000, or 15,000 
head of stock, he buys 40 acres of land, and then he has a monopoly of the whole range 
because he owns the water. I think, as a matter of fact, that the water should belong 
to the United States — to the land — and not to the individual ; but it is impracticable 
as far as this country is concerned. If he buys the spring he must buy a certain amount 
of land surrounding. The quantity of land, by some fixed rule, should go with the 
necessary quantity of water, as far as determined, flowing from that spring. I am 
inclined to believe that most of the water rights are already taken up, I think it 
would be well to sell this pasturage land in large tracts to the cattle herders, as they 
are of little value except as owned in large tracts. They should, of course, have some 
limit to them. I do not believe in land monopolies. However, taxation and our sys- 
tem of government reaches these things generally very well. I should say this land 
ought to be sold at a nominal cost. Certainly very much of it is not worth more than 
10 cents per acre. In putting it at 10 cents I would .have it carefully restricted. I 
should classify it very carefully, and make a difference in the different kinds of land. 
If a man bought land with water on it, a certain amount of arid land should go with 
it. It is very possible that the old land system in this country is better than the new. 
If the homestead principle applies in the case of agricultural land, I see no reason 
why it should not apply in the case of pasturage lands. If the rule applies to agri- 
culture it will apply to stock-raising. I think 3,000 acres would be sufficient for a pas- 
turage homestead. There is no doubt about it, this question ought to be settled as 
quickly as possible. There is no doubt about that at all. As it is now you are simply 
breaking up the country by protecting a sort of baronial system by reason of these 
enormous herds of stock holding great sections of country, which, perhaps, they would 
not hold if they bought the land and fenced it in. I look upon the present system 
that they have here as simply calculated to continue indefinitely those troubles which 
we have had in Lincoln County. The troubles in Lincoln County arise out of its being 
almost a remote section, outside of taxation. Lincoln County is in the southeastern 
quarter of New Mexico. We all know something about the character of Western Texas. 
Each man is a law unto himself. He is a standing army, with a small arsenal on his 
person. He is a private arsenal, and must necessarily be so by reason of the remote- 
ness of the ranches. They are many limes 20, 30, and often 50 miles away from any 
other ranch. Its location is governed by water holes. These people have gathered 
here from Texas as a rule, and as it is too often the case they are outlaws from other 
States. They get to fighting among themselves, and they swarm out and come into 
New Mexico, and the annual outlet for them is to follow the valley of the Pecos River 
up into Lincoln County. They are there in ;de use of by the owners of large herds to 
drive the small owners away. The tendency is for the strong to overpower the weak, 
and that results from the fact that these lands are held loosely and not purchased. They 
get possession of the water right, and hold all the land around it. That was how the 
revolution of last year was possible. 

I think that the'more you can break up the baronial system the better it would be 
for the country. If we are going to promote civilization in New Mexico it is abso- 
lutely necessary that we should break up this system, whether it is by owning the 
water in fee or by simple squatter rights. You must, of course, regulate it so that 
no one man can own the whole section. I think the chances are for a great number 
of cattle with small owners, rather than large owners. I think there are a large num- 
ber of small ranchmen that would take up herds of cattle. The situation is this : you 
want to have just as many people in the country as possible. You want a land sys- 
tem that will induce the greatest number of people ; that will be land owners, ranch- 
men, cattle owners, or whatever you may choose to term them. I think 1 would sell 
this land at public auction or private entry at a low rate. I am inclined to think that 
the pasturago homestead entry is a. good thing. 

There is such a thing as getting water by digging wells and putting up windmills, 
and other pumping apparatus. There is something in the laud sv stein that allows a 



PUBLIC LANDS. 459 

man "by doiDg a certain amount of work to acquire a certain amount of land. Might 
it not be possible to apply this principle to these pasturage lands, regulating the 
amount of land given by the amount of water he secured. It might be necessary to 
clear up these arid belts where they are 50 miles away from water to make the quan- 
tity of land given larger. That might induce aggregation of capital. 

I think it would be well for the general government to conduct a system of experi- 
ments in regard to artesian wells. I think that might with propriety be made part 
and parcel of the geological survey. I think it is economy to do anything and every- 
thing you can to increase the population. 

I am inclined to think that the old civilization here has no very great love for the 
new. There has been progress in the country, moral and otherwise. There used to be 
a time when priests would go into a bar-room and get a drink like any other ordinary 
mortal, but now they don't. You see screens in front of the doors now, and no more 
gambling in the public places. I think the Pueblos are the most industrious of the 
native population. 



Testimony of Trinidad Romero, Las Vegas, N. Hex. 

Las Vegas, N. Mex., September 5, 1879. 

Hon. Trinidad Romero (ex-member Forty-fifth Congress), sheep and cattle owner, 
made the following statement : 

I am well acquainted with the lands in New Mexico. A great portion of it is pas- 
turage land ; only along the streams is it fit for agriculture. Mu ch more could be culti- 
vated if there was water. The future industry of the country is to be stock raising and 
not agriculture, though it may become a fruit-raising country, and that will pay better 
than wheat and. corn. We raise very good fruit now, such as grapes, peaches, apples, 
apricots, plums, pears, &c, and most all kinds of vegetables, along the streams. There 
is not much frost to destroy fruits and vegetables ; and then we have dew. 

There are very often conflicts between sheep and cattle men. The cattle men are of 
the opinion that sheep destroy the grazing. If these lands were parceled off for sheep 
and cattle men there would be no difficulty. My stock ranch is near Fort Bascom. I 
have about 40,000 head of sheep and 5,000 head of cattle. There is no trouble, because 
they are kept apart ; the sheep grazing on the hills and the cattle on the bottoms and 
in the canons. I have never had any trouble, and if this method was carried out there 
would be no difficulties. 

If these lands were fenced it would be much better. In that case you could have 
the sheep and cattle separate. Wherever the sheep men turn their sheep on the cattle 
ranges there is trouble. The cattle go away and the sheep tramp down the grass. I 
think that 30 acres of land can sustain 10 cattle theyear round. I think if you put 30 
acres under fence and put in 10 heef they will be sustained. Taking a range, I do not 
know but it would take a much larger amount. About 10 sheep is equivalent to one 
beef. That is, 10 sheep could be grazed where 1 heef could be grazed. 

There is plenty of water in my region. I am down on the Canadian River. The 
water rights are not all yet taken up. We have no trouble for water, there is plenty, 
and the country is not yet overstocked with sheep and cattle j there is room for plenty 
more yet. 

Question. Have you any suggestions to make as to the disposal of this pasturage 
land? — Answer. My idea about that is that it is not a good policy for the government 
to sell the land, for then great monopolists might get hold of the land and do as they 
please with it. I think it would be well to dispose of it in pasturage homesteads of 
3,000 acres to each man, at a low rate, at 10 cents per acre, on condition that he put 
up a house and cultivate in timber 5 acres of land, and the government could then give 
him a patent to that land. That would be an inducement for people to settle all over 
the country. I think the present homestead and pre-emption system is not adapted 
to this country. 

I am 110 miles southeast of Las Vegas, and at about 3,000 feet altitude, which is 
much lower than Las Vegas. You can obtain water there in some places at 10 feet, in 
other places 20, 30, and in some places you have to go as deep as 100 feet. I think 
the policy of giving each man 3,000 acres would huild up the country very fast, 
hut I would not advise selling it in large unlimited tracts, because then monopolists 
would get hold of it. I think it would be a good thing to allow each man to have his 
pasturage homestead, and then allow each man to take as many additional acres as he 
has head of stock at the time of entry or purchase. The actual settlers should be pro- 
tected with their bands of stock. 

I think it would be very unjust to do anything that would destroy the homes of 
the Mexicans along the little streams. Many of these people have lived there years 
and years, hut have no title to the land, and very little money. I think it ought to 



460 PUBLIC LANDS. 

be so arranged that the rectangular subdivisions should be made smaller, so that the 
Mexicans could get their small irrigable strips along the streams. 

Irrigation improves the soil year after year. There could be ten times more than 
what there is now if ditches were dug and the water properly stored and saved. The 
rainfall has not increased for the last ten years, but, on the contrary, the streams are 
falling behind, I know this from others, and my father tells me so. There are many 
dry streams now that at some past time were full of water. The best irrigation dis- 
tricts are along the Eio Grande, Pecos, and Canadian Rivers. I do not think New 
Mexico will ever be an agricultural country to any great extent. I think it will have 
to rely on mines and stock raising. 

The timber lands have not yet been injured much, but when the miners come in 
they strip the hills of the timber. There is good timber from the timber line, which 
is at 1,200 feet, up to 6,000 or 7,000 feet. I think the whole subject of the destruction 
of timber could be best attended to by turning it all over to the register and receiver 
of the district land office. 

Concerning mineral claims, I think that they ought to be square ; that would stop 
all disputes that have arisen from not having such a law. We are just beginning to 
develop our mines, and the subject ought to be taken in time. The whole subject of 
mining titles should be placed in the hands of the register and receiver of the district 
land office, as in the case of agricultural and other lands, so that the government can 
keep-track of mineral titles from their inception until the patent issues. 

Q. How many sheep, horses, and cattle are there in the Territory ? — A. I think there 
are between 5,000,000 and 8,000,000 sheep in New Mexico, averaging from $1 to $1.50 
each. There are about 500,000 cattle in the Territory, valued at about $15 per head, 
and 200,000 or 300,000 head of horses, varying from $20 to $25 per head. 

The average price of wool is 10 or 15 cents per pound. Some of the wool is washed 
and some not. Each sheep averages two pounds of wool. I think 30 acres will sup- 
port ten head of cattle, if fenced; I mean, of course, average land. That is my ex- 
perience. I live four miles from Las Vegas, and I have there fenced in about 1,000 
acres cf land, and pasture some stock there — sheep and cattle. Then in the winter 
time I always have about 200 or 300 sheep, besides about 200 he;:d of horses and cat- 
tle, and that keeps them first-rate. That is, I mean to say that 1,000 fenced acres of 
hill and bottom land will keep TOO head of stock, sheep, horses, and cattle. 

I think it would be well to allow 3,000 acres of land as a pasturage homestead, be- 
cause that would give the people room enough, and, as wells would often have to be 
dug (sometimes at a depth of 300 feet) they would not dig them for a less amount of 
land. If it was 1,000 acres some people would not dig wells, on account of the ex- 
pense, which is often quite heavy. I would make it one of the conditions of a pas- 
turage homestead that the settler should bring water on the land and improve it by 
trees, and at the end of five years I would give fcim this land, if there was water 
enough to supply five hundred head of stock. 

Q. Are not people prevented from coming into the county by reason of the cloud on 
Mexican title ? — A. Mexican titles are good but the land has never been properly sur- 
veyed. The government ought to provide for surveying these grants and then the 
people would know exactly what they are about. The way they are now the people 
are afraid to take them up. They do not know whether it is public land or in the 
Mexican grant; and I would have these lands honestly surveyed and then require that 
the persons holding these claims enter them within one year after the survey is made, 
and if they did not do so, then the land should be forfeited to the government. I think 
that Congress ought to confirm those claims that have already been proved up and 
presented to Congress for confirmation. This grant question ought to be settled at 
once, as well as the difficulties in Lincoln County, which are caused by the inroads of 
persons from Texas. If there were permanent titles to the land I think it would tend 
to settle all such difficulties. 

I think I would sell the timber land right out at $1.25 per acre, allowing it to be 
taken in limited tracts. Saw-mill men could then buy the laud from other parties. 

The greatest need we have is people, but we want good, enterprising people. 

I think there is an imperative necessity for the government doing two things : 

1. Dispose of the land at the cheapest price, under proper restrictions and condi- 
tions. 

2. Confirming at once and settling the titles to these Mexican claims. 



1872 



Testimony of William White, Santa F6, A'. Mex. 

Santa Fe, N. Mex., Sejitembcr 2, 1879. 
William White, deputy surveyor, made the following statement : 
Question. How long have you been a deputy surveyor ?— Answer. Off and on since 



PUBLIC LANDS. 461 

Q. You have heard the statements of Mr. Pratt, do you concur in what he says? — 
A. Not entirely. I do not see any use for this extremely accurate and expensive sur- 
vey of the public lands by triangulation. It is simply the purpose of the government to 
put the land in the hands of the people, and the land is now surveyed with sufficient 
accuracy for all practical purposes. When the government parts title to its land, as 
in Illinois and Missouri, it no longer has an interest in them. 

Q. Have you any suggestions to make ? — A I saw among other objections to this 
system of surveys a complaint made that there is not sufficient information with 
regard to the altitudes and the formation of the earth's surface, contours, <fcc. I 
would suggest as regards that that a great deal of information could be given by 
obliging the deputy surveyors to carry one of these ordinary pocket barometers in the 
field and note the elevations and depressions of the land as they pass over it. Of course, 
the altitudes thus obtained will not be extremely accurate, but still they would give 
a great deal of useful information and be sufficiently accurate for general purposes. 
I would suggest, too, that he carry a thermometer that could be read, and there you 
have a check on this whole system of observation throughout the extent of the public 
surveys. This taken together with the reading of the barometer would cost hardly 
anything, and be of great use. These instruments could be the property of the govern- 
ment, to be taken by the deputy surveyors and returned to the surveyor-general when 
done with. 

I was spoken to this morning about the question of making an alteration in the price of 
public land. My opinion is that it is very much to the interest of the government to 
go very slowly in that matter. This thing of determining what is arid, worthless land 
seems to be very simple, but it is not, because it is altogether governed by circum- 
stances which you cannot foresee. Valueless land to-day is settled, cultivated laud 
to-morrow. Land that is slimly populated men will not look at, but when densely pop- 
ulated it is cultivated and valuable. I think that this call for this great reduction in 
the price of land, and to sell large tracts of it which are now regarded as valueless, 
comes from swindlers who want to buy it very cheap and sell it very dear. It comes 
also from men who own large herds of cattle and sheep, and, of course, who like to get 
hold of it for little or nothing, so that they can subsist their animals' upon it. So far 
as delay is concerned, it does not hurt these men who own the cattle ; they are now 
grazing free of cost. I think that ought to satisfy them. It would be better to lease 
this land to them for a term of years. I do not see the necessity of sacrificing large 
tracts of land, selling it now and getting very little for it, whereas in the course of 
years this land will be very valuable. They are constantly finding out that water can 
be obtained in one place and another. Eight in this town there is land which was sup- 
posed to be valueless, and it is now found that It can be cultivated with water. I 
do not think that all the water in our country is yet known. There are also very large 
tracts now claimed as worthless that in course of time will bo valuable by means of 
water. 

Q. Don't you think there should be some classification method adopted for defining 
the kind and character of the land which the deputy surveyor returns on the map and 
field-notes ? — A. More information, I suppose, could be obtained in regard to this point 
by greater accuracy of surveys. 

Q. Suppose you had a geologist, would that help you any ? — A. Yes, I think it would 
materially. If the pay for subdividing was better you would then have a better class 
of work. 

Q. Do you not think it would be better to have one general United States law that 
would regulate all mining matters? — A. Yes, I think it would. 

Q. Don't you think that the register and receiver, or by deputy, should have the first 
inception of mineral titles, and that it all should be in the land office and not in the 
office of the local recorder ? — A. I think that would be very much better, for the rea- 
sons that the other gentleman stated. 

Before closing I should like to say again that I do not believe it to the best interest 
of the government to sell these lands in large tracts, and that it should be done with 
great care if it is done at all. 



Testimony of Clias. M. Eolker, mining engineer, New Yorlc. 

The questions to which the following answers are given will be found, on sheet fac- 
ing page 1. 

New York, November 6, 1879. 
Public Land Commission, Washington, D. C. : 

Sir: The editor of the Engineering and Mining Journal has given me a copy of 
your printed questions, with a request to answer such as I am personally familiar 
with, and I will answer seriatim the questions on "lode claims " as far as I can speak 
from personal experience. 



462 PUBLIC LANDS. 

1. I am an educated mining engineer, studied in Europe (Clausthal School of Mines) 
and iu this country (New York School of Mines). I have followed this, my specific 
"business, since 1888. I have seen and examined the principal German metal mines, 
and examined the following districts in this country : the New Jersey iron and zinc 
mines ; Pennsylvania — Wilkesbarre, and Scranton coal regions ; the Wisconsin lead 
mines ; Lake Superior iron mines and copper mines ; the Mariposa County, California, 
gold mines ; the mines of Story, Lyons, and Ormbsby, Washoe, Echo, and. Elko, and 
the Eastern Nevada mines. The Nevada mines have come under my observation for an 
uninterrupted period of over two years. Aside from professional examination in 
these districts for individuals and stockholders, as commissioner I have been in charge 
of the Mariposa estate, and directed prospecting operations in Washoe County, Nevada, 
and am at present on the point of starting for Silon Reef, Utah, to direct the work- 
ings of a New York company, the Stormont Company's mines and mills. 

2. Overlapping should not be allowed in locating claims, as it will always give rise 
to lawsuits and blackmail claims as soon as either claim is coming to the front as a 
paying proposition. I have had difficulty myself in Peavine district, Nevada, which, 
however, resulted in no lawsuit nor fighting, simply because with the larger number 
of men at my command I simply removed the monuments as soon as erected; and law- 
suits would not be brought because men no doubt had not sufficient confidence in their 
claims to risk their money in suits, and also because they knew, well backed as I was 
with money, that litigation would, be costly. Among individual prospectors of the 
same financial caliber frequent troubles arise by one party starting a shaft, &c, in the 
overlapping ground. Rigid laws should be passed to prevent future swinging of claims 
by forcing the district recorder to survey each claim in person (so he can not depute 
the locating party), to fix the monuments, to keep in one book of survey records the 
bearings of these claims' end and side lines, and that afterwards it be entered on 
the district plat, say within thirty days of day of location. Have such in express 
terms of United States laws expressed, and let a claim not placed on record in such or 
similar manner be forfeited. The locator shall locate in the presence of the recorder, 
and at that time the district recorder shall survey it, the claim, in person, or by his 
lawful deputy recorder appointed at the annual meeting in advance, but no other per- 
! : 'son shall be qualified. The deputy recorder shall place the monuments, 6 in all, 

4 corner and 2 center monuments, and it shall be unlawful to overlap ground once 
located. On the posts have the name of the claim and locator and day when 
. : .located. Such having been complied with and the recorder stamping with his 
seal (rubber stamp) the corner posts, a certain fine should be fixed for any one med- 
dling with, changing these posts, or its equivalent in imprisonment. Now it shall be 

the duty (under penalty of $ ) of the recorder to enter such claim and its notice of 

location just as of old on the record book within twenty days of day of location, and 
on the district mine plat within thirty days after location notice. The stamp on the 
posts is sufficient warning to others and the fine imposed on the recorder to comply 

with the law. It shall be against the law and subject to fine of $ (bondsmen 

always can pay up) to keep more than one book of locations or survey records at one 
time, and no new book shall be used until the first is full. This abuse prevails in the 
West : say three books of record are run at the same time. A locates on the 3d at 11 
a. m. ; B oh the 5th at 1 a. m.; C, a friend of the recorder, locates in reality, as it 
now goes, on the 20th the same claim, or drives old-looking posts somewhere near the 
tree monuments; he claims the wind blew his notices down, and tells A he jumped his 
claim unlawfully. They go to the recorder, he turns to the other book in which 
neither A nor B are recorded, but kept for such occasions, and turns to a page, and A 
finds, although in reality he located prior to C, still that the records show, say, he 
located on the second at night. The records condemn him, and C has still time to the 
23d to do his two day's work, as many local regulations require that to be done within 
twenty days after location. As such A, the rightful locator, is defrauded. Sometimes 
pages are kept blank for similar purposes. Such acts of the recorder, for which he gen- 
erally gets $20, sometimes a drink, should be punishable by a fine of at least $500, and 
imprisonment besides. Hard as it may seem, I know of such practices. Were such a 
law in force the late bloodshed in Boric, about the Jupiter and Owyhee claims, would 
have been avoided, as one generally known scandal, and many a quiet row would be 
avoided. Not too much care can be exercised in the first locating and getting the 
records clear, for it is the foundation to the future successful structure dependent 
on the good mine. 

4. The top or apex of a lode is the outcrop («), or, in case of a blind ledge, that line 
of the vein or lode which approaches the surface the nearest. In some cases, it is im- 
possible to determine dip of lode in early work- 
f ^ 7 r-,-:,r li i n,r,-, :; ;-;->. i i^gs* ami of ten, if many ravines and hills trav- 

^//^T/T^y^^yA//?/// erKe * uo country also, its course can only be 
^'/O///////^t==0^//. inferred from the supposed action they had on 
'Ww^' the course of the vein. For the dip 1 simply 
quote you the Comstock lode, which in force 




PUBLIC LANDS. 



463 






dipped west (one of its branches), and it was also ore-bearing in the western dip, and 
only when reaching the eastern dip, at about 300 feet depth, parties found out that what 
appeared as an immense fissure proved to be in reality a spur. In the 
Union Consolidated, in Southern Califor- 
nia, this change of dip only occurs at 700 £ 
feet (nearly) depth. Until they struck this ^SW 
dip, changing into the opposite direction, 
no one dreamed the lode ever would turn. 
Then you have lodes, not side or companion veins or spurs, 
which on gaining depth come outside of the reach of sur- 
face shooings, if I may say and assume the general country 
dip. Now, this may take place at such depth that early- 
workings cannot determine the true dip. Often, yes, very 
often, in regular and less disturbed country, it can be determined, but not always. 
Or take a ledge dipping as I found one in Peavine district, 
dipping above 82°, then 60°, then 45° ; and its final dip was 
22°, after attaining 265 feet vertical depth. In the same dis- 
trict I found the change from eastern to western dip due to 
the action of country rock. Such is liable to occur frequently 
in zones of contact. 
5. Yes, they are. 

G. I have heard of such difficulties ; but if, instead of arguing whether or not a ledge 
belongs to a certain outcrop, the court would order a disinterested mining man to 
raise up a small hole or shaft, or winze, properly speaking, on the lode until it cuts 
the surface or comes out in the apex, such matters would be easier settled, and such 
should be done at the expense of both parties, and would cost less than expensive 
suits and expert testi- 
mony, &c, maps, mod- 
els. Then the judge and 
jury could see for them- 
selves. Seldom such 
troubles arise after 
great depth has been 
attained. Say two 
croppings exist on a 
hill ; my tunnel opens 
a ledge. I located apex 
1. Tom located apex 2. 
I should simply raise up to apex 1 to prove my ledge to the satisfaction of any one, 
and prove his assumed dotted course (a) wrong and (&) probable. 

7 and 8. I know of a ledge at Rye Patch Mining Camp, in Nevada, where one lode 
has two outcrops or apeces. a the Depha ledge, the 
older location ; r the Rye Patch ledge, the newer loca- 
tion, r cuts off a without a doubt (I examined the case 
only beginning of last September), and the suit has just 
temporarily been settled in the Winnemucca courts. 
The point contested was not what you ask in 8, but 
was a question of a forfeiting mine on account of legal 
work not performed. 

9. In some instances. 

10. Decidedly yes ; and Nevada and California mines will certainly suffer by the 
vertical boundary theory. As far as I am able to judge it is a special Colorado notion 
to cover its specific cases, which they can do by local laws ; but the average of mines 
in this country would suffer under such legislation. 

11. Works both ways ; its final result is to open up mineral lands and resources. 

12. B can try it, but having no case it depends 
on the judge to allow such blackmail. Should, 
with a flat dip of the lode the opposite of the 
sketch, B's shaft strike lode outside of A' a side 
lines at a point not yet reached by A, A could, 
with intelligent judge, take injunction on B to 
await proof ; but certainly the opposite no intelli- 
gent and impartial judge could encourage. B cer- 
tainly can start a suit, as anybody can sue for what 
does not belong to him, and if ne has a sufficient 
number of men to swear by twenty-dollar pieces 
he may even cause inconvenience to A ; but very 
few laws, if any imaginable, could prevent such an 
attempt. I don't know of a case where, save a lit- 
tle sparring, it did, under your stated circum- 
stance, cause considerable inconvenience. 





(Sectional line 




464 PUBLIC LANDS 

13. First part, yes ; but would be remedied by my answer to second part, no ; but 
questions of absolute title. 

14. Yes, it is. 

15. No ; but my answer to 2 tells you sometbing of tbe books of record. 

16. They generally modify immaterially the forms required under May 10, 1872, ex- 
cept the affidavit of 2, to testify to the fulfillment of Congressional and local laws, 
which is hardly ever done. 

17. If claim has been located wrong, say, on course, and it is not open to relocation 
according to law, the original locator simply locates his own claim anew and files 
and records new notices, recalling the former. 

18. Yes. My remedy suggested is that, say, recorder must give, say, two bondsmen 
of $1,000 each, which bonds are filed with the county recorder of deeds, imposing fines 
on suggestions made under 2, and enforcing them strictly. This will give us better 
recorders. The recorder ought to be able to read and write himself, and not use his 
deputy for it ; be able to make rough mine surveys and sketches or plats with a com- 
pass. 

19. I think it would be well to leave the mining recorder, but force him under pen- 
alty to send every ten days copies of notices of location, with survey minutes and 
plats, to the United States land officers of the district, so as to guard against future 
frauds and side entries or destruction of records by fire, so prevalent and disastrous 
in the West, where the high winds prevail. 

20. No ; I think better leave it to the courts ; for in mining districts, at least at 
present, the judges and bar generally are better acquainted with the practical ex- 
planation of mining laws than the far-off land officers; but I think instead of laying- 
mining cases before juries of men prejudiced by ignorance or bribed by parties, as such 
incapable to judge because it often goes beyond their intellect, that it is better to have 
three judges to lay the case before. The study and education of a judge qualifies him. 
more than any jury, except it be composed of impartial mining experts, to decide 
mining difficulties ; and in the end it will prove advantageous to all concerned in our 
mining domain. 

21. Outside of remedies suggested I have only to say that, after thus having secured 
official absolute title by presence, &c, of recorder, and forcing recorder to his duties, 
that the receipts for the $100 required to be done by law annually should be recorded 
and filed, with the proper receipts and vouchers, in the mining recorder's office, who 
in turn forwards them to the land office ; that the not filing of such work done, with 
the vouchers, sworn to before a notary, forfeits the claim if such is not done within one 
year from the date of location, or the after years, commencing and ending on the date 
on which claim was located. 

22. Yes ; I think it will. Two years after day of location I think is sufficient time 
to prove a claim ; and if parties do not do more than $200 worth of work on it, as it is 
only too often done, such claim ought to be forfeited to the public domain. Provided 
patent has not been applied for within two years after location, even should several 
thousand dollars have been expended, I think it should be forfeited ; for, as one, the 
government should profit by our individual possession of the claims, outside of taxes, 
&c. ; secondly, two years is sufficient, if diligently employed, to prove a mine ; and 
when proved the United States should have the benefit of it. 

Should I not have been explicit enough in my answers, I shall always deem it a 
pleasure and honor to add to above. 

I remain, sir, your obedient servant, 

CHAS. M. ROLKER. 

P. S. — I am neither interested in mines nor locations, personally or indirectly. 



Testimony of Henry Warren, farmer, McMinnville, Yam Hill County, Oregon. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1. 

1. Henry Warren, farmer; McMinnville, Oreg. 

2. In Oregon thirty-two years. 

3. Under the donation land laws. 

4. Receiver land office Oregon City, Oreg., for nine years. 

5. Contested cases six months ; uncontested cases the usual time, under each of the 
different laws. 

6. Yes ; parties should not be put to the unnecessary expense of advertising thirty 
days before they can make their entry ; neither ought they to be forced to go to the 
land offices with their witnesses. The new law requiring this is an imposition upon 



PUBLIC LANDS. 465 

a class of people who are not able to pay it. It costs now about $30, when under the 
old law it only cost one- fourth of that sum. 

7. Public lands now here is mostly timber and pastoral lands. 

8. By a general rule. 

10. The present laws are sufficient unless small fractions disconnected from other 
lands, which should be disposed of at private entry. 

AGRICULTURE. 

1. Need no irrigation in Oregon; snowfall in valleys; but little in Middle Oregon. 

2. From November to February. 

3. All portions that can be plowed. 
5. All crops. 

8. I have no knowledge of it. 

12. Many thousand acres. 

13. Yes ; 160 acres. 

14. One hundred and sixty acres. 

15. Four acres. 

16. Fifty head. 

18. Diminished. 

19. Yes. 

21. Plenty. 

22. Ten. 

23. Diminished. 

24. No ; sheep will starve the cattle. 

25. None as yet. 

26. Don't remember. 

TIMBER 

1. Large amount in the mountains. 

2. Fir, spruce, hemlock, oak, ash, alder, &c. 

4. I would classify the land as to price. 

5. No, not in the fir-bearing land. 

6. Generally from carelessness ; heavy penalty should be paid for it. 

7. Not much in this section of the country ; timber not easily gotten at. 

9. No. 



Testimony of Orson A. Stearns, Plevna Precinct, Lake County, Oregon. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1. 

Linkville, Oreg., November 28, 1879. 
To the Public Land Commission, Washington, D. C. : 

In answer to the interrogatories propounded in your circular addressed to myself, 
I beg to submit the following : 

1. My name is Orson A. Stearns; I reside in Plevna Precinct, Lake County, Oregon ; 
am a farmer by occupation. 

2. Have resided in this county since the earliest settlement ; was the second person 
to take up a place in this county, and while yet it was a portion of Jackson County. 
Have resided in this State since 1853. 

3. I have sought to acquire title to a piece of government land adjoining some I 
purchased of the State of Oregon under the soldiers' homestead law. 

4. I have been connected as witness and principal in an innumerable number of 
contests between .settlers and swamp-land speculators. 

5. The time of securing title to public lands varies, and in uncontested cases is un- 
impeded and easy to obtain. In contested cases, where the conflict arises between the 
settler and swarryp or other land monopolies, it is frequently prolonged until the set- 
tler is frozen or starvedout. Within my own knowledge, several contested cases which 
were tried over three years ago are undecided as yet, and several others have been 
tried over and over again under some ruling of the Commissioner of the General Land 
Office. 

6. There have been serious defects in the operations of the land laws, resulting some- 
times from he different constructions placed upon them by different officers, some- 
times by the ocal land officers being interested inland speculations, or being appointed 
to their positions through the influence of wealthy land speculators to enable them 
more easily to defeat the claims of settlers. The present manner of taking depositions 

30 L C 



466 PUBLIC LANDS. 

n land cases, when the interrogatories, cross and rebutting, have to be filed, is not 
icalculated to develop the facts in the case, but rather promotes falsifying and perjury. 
I believe all evidence allowed in contested cases should be produced at the time of 
trial, and all witnesses should testify in the presence of the local officers and the ad- 
verse party, subject to the rul< 8 of evidence, and all ex-parte testimony be inadmis- 
sible. It would prevent false testimony being used as extensively, as a majority of the 
hired witnesses would not testify where they were cross-examined and confronted with 
the adverse party. 

7. The lands in this county are largely pastoral, though along the water-courses and 
next the foot-hills some considerable tracts of good farming lands are found. The 
high altitude of this country and its liability to frost at any time during the summer 
renders farming, except hay raising, rather precarious, save in a few favored locali- 
ties. The timber is confined to the spurs of the Cascade and Sierra Nevada Mount- 
ains principally, though the high hills which separate the innumerable valleys and 
basins of this county are partially covered with juniper, and in places with pine and 
fir timber. The water-courses here are generally destitute of timber. Immediately 
along the larger water- courses and upon the borders of the many lakes and marshes 
are valuable hay lands, without which the pastoral pursuits would be very precarious, 
A great portion of the level lands not marshy are covered with a growth of sage brush 
and other brush peculiar to the light, friable soil found here, with intervening patches 
of low alkali patches or basins, where there is little vegetation found except a short 
salt grass. 

8 and 9. In my judgment the deputy United States land surveyors should give the 
nature of the soil and its adaptability to the different pursuits, especially in a country 
like this, where such a wide difference exists in lands so contiguous to each other. In 
a pastoral country, where farming is neither profitable nor successful, native meadow 
lands should be classed as such, and not returned as swamp or overflowed where they 
can be profitably used in the pursuits of husbandry in their native or wild condition. 
Pastoral lands, or such as are unfit for agriculture, embracing a large area of this 
county, are of two classes — the hilly bunch-grass region and the sage or so-called 
desert tracts — where there grows a variety of grasses among the brush that afford sus- 
tenance to vast numbers of horses, cattle, and sheep. The timber lands should also be 
classified and priced according to their relative values. First, heavy timber or forests, 
where the timber is almost the only product of the soil and is suitable for lumbering 
purposes; second, the more thinly- timbered kinds, where the timber is less valuable 
for lumbering purposes ; and third, that class that is sparsely timbered, or only suffi- 
ciently so as to afford fire-wood and for some of the necessary improvements usual to 
newly-settled countries. 

10. In my opinion, every settler upon the public domain should be allowed to pur- 
chase, at as low a valuation as it may be placed at, from 40 to 120 acres of timber 
land as near as may be to his farm, when such farm is prairie land, or so nearly so that 
there is insufficient for fire-wood or the improving of the land. 

AGRICULTURE. 

1. In this county the rainfall is light, the summers being nearly always dry. The 
snow falling frequently before sufficient rain has fallen to start the grass, generally 
melting off in February or March on the open country, but remaining in the mount- 
ains until May or June. Summer rains are generally followed by frosts, except in 
sheltered or highly-favored localities. The water supply, except in places, is limited, 
and from the nature of the valleys, being low and level excepting in the foot-hills, 
there is not much chance for irrigation during the time such a measure would be ben- 
eficial, owing to the fact that in most places the streams or channels from the mount- 
ains become dry early in the season. 

2. The rainfall generally occurs either in November or in February and April. I do 
not know its relative quantity, as it varies with the seasons, sometimes being greater 
in the fall, sometimes in the early spring. 

3. By fall plowing, where practicable, or summer fallowing, the larger portion of 
the arable land can be successfully cultivated without irrigation. 

4. Where practicable to irrigate, it would be beneficial to the larger portion of the 
lands, especially where too sandy or too strongly alkaline, as the water would tend to 
wash away and destroy the alkaline deposits that accumulate on the top of the land, 
as it dries and burns up or destroys the tender vegetation. 

5. Very few crops are raised by irrigation ; except in a few localities it is not prac- 
ticed, and then only in gardening. 

6 and 7. The water supplies here are generally the lakes, or deep, sluggish streams, 
that are raised sufficiently by the melting snows to dampen the low lands around them, 
excepting in dry seasons. Very few of the feeders to these lakes and rivers but are 
too remote from the agricultural portions to render them available, as the country is 



PUBLIC LANDS. 467 

so broken up into separate valleys and basins that canals to carry these waters would 
be too costly and expensive to be constructed. 

8. In this part of the country there have been no opportunities for practical obser- 
vation of the effects of irrigation. Crops are raised here at various altitudes, from 
4/200 to 4,500 feet. 

9. Is not pertinent to this country, for reasons above stated. 
10 and 11. Comparatively none. 

12. At least nine-tenths of it ; or more, including timber range. 

13. It is; and the quantity should be not to exceed one section of strictly pasture 
land. 

14. It is not, excepting where the country has been settled for a number of years 
and the agricultural lands nearly or quite all exhausted, when I would allow each set- 
tler to enter contiguous pasture lands, which, together with his other lands, should 
not exceed one section. 

15. From 10 to 12 acres. In newer sections, where the range has not been over- 
stocked, it takes less. 

16. From 100 to 125 head. 

17. Cattle and horses both ; there are perhaps about 30 to the square mile. 

Id. It has diminished, except in places remote from water, where it is only grazed 
during the late fall months. 

19. Where they can secure a large range by a little fencing they do, but they gener- 
ally run on the common, and are only separated during the winter, when they drive up 
those they wish to feed. They could be when water is plentiful for their use and feed 
provided, against severe storms ; otherwise, not. 

20. Undoubtedly they would, as with the present system the enterprising man is 
taxed to improve his less enterprising neighbor's cattle, and bulls are not confined, but 
roam at will through the country. 

21. Springs, rivers, and lakes or ponds. 

22. Six sheep are generally equivalent to one cow. 

23. I think it is injured less by sheep than cattle, unless they are kept too continu- 
ously upon one place year after year. 

24. They will not to any extent. 

25. Cattle men have strong prejudices against sheep, as the latter will drive the 
former away from any range where they are kept. 

26. There are more cattle than sheep j the former are not herded ; the latter are kept 
in herds of from 700 to 3,000 each. 

27. I believe none, as my 'opinions are set forth very fully in preceding answers. 

28. There is, on account of the insufficiency of the mounds and the poor quality as 
well as insufficient size of the posts set to mark the corners. 

TIMBER. 

1. The exact or approximate amount of timber in this county I could not state. On 
the west side of the county, which embraces the eastern slope of the Cascade Mount- 
ains, there is a heavily timbered section, consisting of yellow and sugar pine, yellow 
cedar, red and white or balsam fir, with a few smaller and worthless varieties. The 
crests of the higher mountains dividing the numerous valleys and basins of the coun- 
ty are covered with a similar growth of pine and fir, while on the lower hills, and 
scattered in small clumps or clusters, there is a considerable amount of juniper tim- 
ber. There is, perhax>s, one-third of the area of the county covered with a growth of 
timber. 

2. There is no timber culture in the county within my knowledge, only a very few 
small orchards of fruit-trees set out. 

3. I would dispose of the public timber by sale only, and classify the timber lands 
as first, second, and third quality — the heavily timbered constituting the first or most 
valuable class, which I would sell in 40- acre lots only, and at a minimum price of $4 
per acre. The second class, where the growth was less heavy and valuable, I would 
limit to 80 acres and place the price at $2.50 per acre ; while the third class, which 
would embrace lands that were very sparsely timbered or covered with timber suita- 
ble only for fire-wood and. the many requirements of a farmer's or rancher's uses, I 
would limit to 160 acres and fix the price at $1.25 per acre. This would enable those 
owning lands that were not supplied with timber to purchase and control enough for 
their own use and insure an economic use of the same. 

4. Included in above answer. 

5. In the heavy pine and fir forests there is a second growth, but it takes at least 
two or three generations to enable it to reach sufficient size to be valuable. In the 
juniper forests there is no new growth. 

6. Forest fires here are generally the result of carelessness or wantonness on the 
part of hunters. Generally they are built by Indians to concentrate game. The 
method of prevention in the former case would be to make it an offense punishable 
with a heavy fine or imprisonment, and give half the amount recovered, or a sufficient 



468 PUBLIC LANDS. 

remuneration, to insure tlie conviction of the guilty parties. In the latter case punish 
the Indians by taking from them their annuities or forbidding them the privilege of 
hunting outside their several reservations. 

8. The local customs as to cutting public timber are that the ownership rests with 
the party cutting it, except where such party is hired by the day, which is a rare oc- 
currence. Kails, shingles, shakes, cord-wood, fence-posts, and saw logs are generally 
purchased of the party who fells the timber at customary prices, and are often con- 
tracted for in advance. In this section the dead and fallen timber is generally used 
for fire-wood, except near the towns, where it is customary to fell green timber and 
cut and cord it and let it season. Fence-posts are generally made of dry timber, 
either fallen or standing, as it is generally conceded that such timber lasts longer 
when set in the ground. 

9. I think it would, if instructions and regulations were adopted to render their 
administration efficient and impartial. But such offenses are usually condoned or 
overlooked in large or wealthy corporations, and only noticed where the offender has 
been informed on by some jealous or vindictive neighbor. 

Very respectfully, 

O. A. STEARNS. 



Testimony of Charles M. Foster, surveyor and civil engineer, Baker City, Baker County, 

Oregon. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1. 

Answers to questions submitted by the Public Land Commission. 

1. My name is Charles M. Foster ; residence, Baker City, m Baker County, Oregon ; 
occupation, a surveyor and civil engineer. 

2. Have lived in the county seventeen years. 

3. Have not. 

4. During the past nine years much of my time has been spent in assisting parties 
in obtaining title to public lands, under the pre-emption, homestead, mining, desert, 
and timber laws of the United States. 

5. Under the pre-emption law it requires from forty- five months to five years to ob- 
tain title, and costs the claimant from $21 to $50 exclusive of acreage. In contested 
cases the time and expense are increased indefinitely. Under the homestead law it 
requires from six to eight years and costs from $43 to $90 to obtain title. Under the 
mining laws it has required not less than two years, and in some instances seven, to 
procure title. Under the timber and desert acts no titles have been obtained in this 
county, although the provisions of law have been executed and complied with. The 
expense of obtaining title to mineral lands in each case range from $125 to $500, ex- 
clusive of acreage. 

6. The following provisions of the pre-emption and homestead laws, in my opinion, 
ought to be changed, to-wit: "An act to provide additional regulations for homestead 
and pre-emption entries of public lands," approved March 3, 1879. The above act re- 
quires the claimant of pre-emption and homestead lands to give notice of intention to 
make final proof by publication in a newspaper for thirty days. It is difficult to con- 
ceive the object of the above act. As the homestead and pre-emption laws provide 
how and in what manner contested cases shall be determined, and further provides 
that none but actual settlers can receive the benefit of those laws, hence it follows 
that none but an actual resident upon the land can have and maintain a valid adverse 
claim; consequently it follows that the notice required above is given for the benefit 
of no one but the applicant's neighbor, who must be a resident of the same tract of 
land in order to be interested in the final proof ; hence the published notice is a use- 
less expense, as all adverse claimauts must be, or must have been, upon the land and, 
of necessity, be in full possession of all the facts relative to the rights of the original 
claimant. 

Under the present homestead law, an applicant, if not residing upon the land, or 
some member of his family, must appear at the land office and make his affidavit. If 
he, or some member of his family, is residing upon the land, he can make his affidavit 
before the clerk of the county. Query : Why discriminate, and force the applicant to 
travel 150 miles to visit the laud office, which is the case m this district ? Again, under the 
present pre-emption and homestead laws the applicant, in making final proof, must pre- 
sent himself in person at the land office and make his final affidavit, while the affidavits 
of his witnesses are permitted to be taken beforo a clerk of a court of record or county 
judge. Why compel the claimant to travel long distances to reach the land office, and 
allow his witnesses to be qualified before a county clerk or judge? 

7. The physical character of the public lauds in this land district are arable, irriga- 
ble, timber, pasturage, swamp, and minral, and cau only be classified by geographical 
divisions. 



PUBLIC LANDS. 469 

AGRICULTURE. 

1. Climate, mild. Rainfall, light. Snowfall varies from none to two feet in the 
valleys. Water-supply for irrigation is limited. 

2. The rainfall occurs late in the fall and early in the spring. From May until 
October no rain can he expected ; consequently, during the irrigating season no rain 
can be expected. 

3. No portion. 

4. About one-tenth. 

5. All crops are raised by irrigation. 

6. About 3,000,000 cubic feet of water. Some land requires more, some less, owing 
to its character. 

7. The sources of water-supply are the mountain streams that are fed by the snow- 
fall ; in summer they shrink to one- third or one-teuth of their spring quantity. 

8. I have no experience on the subject of irrigation, only in this county. The fer- 
tility of the soil is unquestionably injured by irrigation, not only in proportion to the 
increase of crop produced by it, but also by reason of the washing away of a portion 
of the soil yearly. 

9. It is impossible to calculate the portion of water wasted in irrigation, and the 
portion returned to the stream. Some soils absorb treble the quantity of water of 
others. The return of surplus water to the stream, after irrigating, is voluntary. The 
doctrine prevaling here is that the first appropriator of the waters of a stream has the 
entire and exclusive control of the water he appropriates, consequently subsequent 
location of farms upon a stream affording but a limited supply of water are made at 
great peril. Much trouble and litigation has arisen from the practice of one man con- 
trolling the water of a stream. There should be a law enacted requiring each farmer 
located upon a stream of water to use the water judiciously and return all the sur- 
plus water to the natural channel, so it could flow on to the next farm below. 

10. The waters of all streams available for irrigation are claimed, under the com- 
mon rule of miners, by posting a notice at the point on the stream where the water is 
to be diverted, and by cutting a ditch to convey the water. 

11. Conflicts relating to water rights arise from two parties claiming water from 
the same stream. The quantity appropriated and the priority of appropriation are 
the principal questions to be decided. 

12. About nine-tenths. 

13. It is not practicable. 

14. Thousands of acres of the pasturage lands in this land district are already in 
market, and have been for years, but no one will buy. 

15. Cannot say what quantity of land is requisite to pasture one head of beef, as 
the pasturage lands dry out and the grass becomes too dry for the cattle to eat in the 
dry season, and they resort to the bottoms and low lands. 

16. One hundred and fifty head of stock cattle. 

17. About five head, taking the whole county. 

18. It has diminished. Bunch-grass will not bear feeding. 

19. They do not. Cattle cannot be confined in winter unless fed. 

20. No. 

21. Mountain streams. 

22. Seven sheep are equal to one cow. 

23. Has diminished. 

24. They will not. 

26. In this county there are 50,000 cattle and 30,000 sheep, in herds of 5 to 5,000. 
28. There is not, as the surveys are of recent date comparatively. 

TIMBER. 

1. There are about 100 square miles of timber lands in Baker County. Its charac- 
ter is pine, fir, and tamarack. 

2. No timber planted. 

3. My opinion is that timber lands should be disposed of the same as placer mining 
ground is at present — that is, by legal subdivisions where the surveys have been ex- 
tended, and unsurveyed lands to be surveyed in tracts not exceeding 160 acres, in any 
form the applicant might desire. The reason for such disposition is this : In all of 
the mining districts in this State the timber lands are located upon the mountains, 
and are never sectionized by the government, for the reason that sufficient land can- 
not be sold to justify the expense. Hence the necessity of some law whereby persons 
who desire to manufacture lumber in these mining camps and districts can purchase 
timber wherever they may wish. The present timber act applicable to Oregon is 
simply an outrage upon the people in every section of the State where the timber 
lands are not sectionized. In this part of Oregon it virtually compels every man to 
cut his own wood and manufacture his own lumber. It is difficult to conceive of a 



470 PUBLIC LANDS. 

greater absurdity than the present law. I think 160 acres are sufficient for one per- 
son, and $2 per acre a sufficient price. Trees in our forests suitable for making lum- 
ber are scarce, hence the necessity of allowing a party to buy as much as 160 acres. A 
stumpage law would work well here. 

4. I would not classify timber lands. 

5. There is a second growth of timber; same character as the original. Its growth 
is slow. 

6. Indians are the prime cause of our forest fires. Each year the fires consume 
more wood than the entire population of the country. The prevention of these fires 
is simple — kill every Indian that leaves his reservation. 

7. No unnecessary depredations are committed. 

8. Have no local customs. 

9. If the present timber laws were enforced it would necessitate the abandonment 
of this entire county. The timber laws would undoubtedly be more efficiently exe- 
cuted if placed within the jurisdiction of the district land officers. 

LODE CLAIMS. 

1. Have mined more or less in California, Oregon, and Idaho Territory during the 
past twenty years. Have acted in the capacity of deputy United States mineral sur- 
veyor since 1871. 

2. There are many defects in the mining acts. First, there is altogether too much 
red tape, too much expense, and too much time required to obtain title. (See my 
answer to question 21.) 

3. The official practice of filing surveys of lode claims which overlap on the surface 
is wrong, and wholly unwarranted by the mining law. Section 2322 of Revised Stat- 
ute gives the locator on a lode all the surface ground and all the mineral-bearing 
veins within his lines of location. Hence what right has a subsequent locator to 
overlap another claim ? 

4. The top or apex of a vein or lode is that portion of the vein that is visible in vhe 
country rock when the loose dirt or earth has been removed. Some veins stand up 
above the country rock like a wall. The top of such veins would be the highest part 
of such wall above the ground or bed-rock. The top of a vein can be determined by 
uncovering it at any point ; the true strike of a vein can only be determined by un- 
covering the entire vein or by uncovering it at various points so as to prove its con- 
tinuity ; the dip must be determined by sinking a shaft or incline on the lode. It 
very seldom happens that all these features can be determined in the early working 
of a vein. 

5. The rights of a discoverer are properly protected under the present law, the bur- 
den under which he labors being the determination of the true strike of the vein. 
This he must ascertain or take the chances of not including the vein within his lateral 
boundaries. The dip of a vein cuts no figure in the original location of a claim. 

§. Litigation has not, to my knowledge, grown out of the impossibility of determin- 
ing the true course of a vein, but has ensued from carelessness in making a location 
before the strike of a vein was determined. The famous Emma mine in Utah was 
located crosswise of the vein instead of lengthwise through a misapprehension of its 
true course. 

7. Have not. 

9. I have never known the outcrop of a vein to exceed the legal width of a claim. 
The float may be distributed over a space wider than a lawful claim. 

10. They do, unless the true course of the vein is determined before the claim is 
located ; hence the fault of the present law requiring the end lines to be parallel. 

11. Locations on alleged veins are not permissible under the present law. No loca- 
tion can be made until a mineral-bearing vein has been discovered. 

12. B cannot under the present law. The original locator can follow the dip of his 
vein wherever it goes. 

13. I have known litigation to arise from a subsequent locator striking the original 
vein outside of the lateral lines of the original claim, but the only trouble in such 
cases can be removed by connecting and tracing the vein in the first location to the 
works on the subsequent claim. Whenever it is shown that the subsequent locator is 
working the same vein as the original locator, then there can bo no chance for dis- 
pute under the present law. 

14. It is difficult to conceive what provision could be inserted in the mining law 
affording any further protection to miners in following the dip in their veins or that 
would prevent litigation. 

15. At Auburn, in Baker County, Oregon, I was present and assisted in organizing a 
local mining district. There were about thirty miners present ; none others took part. 
The only officer elected was a district recorder. His duties consisted of going upon 
the claim (when called upon to record it) to measure it and to describe it with suffi- 
cient certainty so it could be readily found, and to record and number the claim in a 



PUBLIC LANDS. 471 

book kept for that purpose. The record-book of a mining district consists of a book 
in which the boundaries of the district are described and the rales governing the loca- 
tion, holding, and making of claims, and if the book is of sufficient size, it also con- 
tains the record of location of claims. The books commonly used are 4 by 7 passr 
books, carried in the pocket. When one is full another is procured, and in course of 
time some of the books are lost or mislaid ; hence the records are in nine cases out of ten 
defective. At the present time in this section of the State not one mining district in 
five pretends to keep up an organization. 

16. The common mode of taking up and locating a mining claim under local rules 
is to measure off the claim of the size allowed and set stakes at the corners, and then 
post a notice on the claim and have the notice recorded by the local recorder of the 
district. The object of the record is to give notice to outside parties that the partic- 
ular piece of land has been claimed. So long as the claimant complies with the local 
rules he can hold the claim. 

17. The record cannot be altered, but a new location can be made covering, the 
original claim and embracing others. 

18. Litigation has ensued from fraudulent manipulation of records, and there is no 
security against it. 

19. Local mining laws and rules are a nuisance, and should be abolished at once 
and the initiation of record title be placed with the county clerks of the various min- 
ing counties. The land office is too remote from the mines in these Western States. 
For instance, a party wishes to ascertain whether a particular tract of ground has 
been located. If the record of such location is in the district land office he must 
travel hundreds of miles to ascertain. The county clerk's office is the proper place. 

20. To transfer the jurisdiction of controversies concerning mineral lands from the 
State courts to the local land officers would, in my opinion, be wrong for two reasons : 
1st, as a rule United States land officers are poor lawyers, even in land matters, and I 
think that our circuit and district judges can come nearer doing justice to mineral liti- 
gants than the local land officers ; 2d. it would be very expensive for litigants to 
attend the United States land office with their witnesses, the distance being so great. 

21. I think it desirable to retain the leading features of the present mining laws ; 
its red tape and expensive administration are its most obnoxious features. To illus- 
trate I append a list of papers that are essential in order to place a claim before the 
General Land Office for patent. 

1st. Request of claimant for survey — the request must be in writing, and made to 
the surveyor-general. 

2d. Estimate of office work in surveyor-general's office. 

3d. Claimant makes a deposit of such expense. 

4th. Three duplicate receipts of such deposit, one of which is sent to United States 
Treasurer, one to surveyor-general, aud the third is retained by the claimant. 

5th. Order of surveyor-general to deputy surveyor to survey claim. 

6th. Survey of claim and field-notes of same. 

7th. Two affidavits of assistants in making survey. • 

8th. Affidavit of deputy surveyor as to the correctness of survey. 

9th. Certificate of deputy surveyor to character of ground and value of improve- 
ments. 

10th. Affidavit of two disinterested persons as to value of improvements. 

11th. Plat of claim and field-notes for surveyor-general. 

12th. Affidavit of two persons that no vein or lode exists on the claim. (If the claim 
is a placer.) 

13th. Four plats of claim made by surveyor- general. 

14th. Two copies of field-notes, with two certificates on each. 

15th. Notice of application for patent posted on claim with field-notes and also plat 
of claim must be posted on claim. 

16th. Affidavit of two disinterested persons that the notice of intention to apply for 
patent, copy of field-notes, and plat of claim were posted. 

17th. Affidavit of claimant of citizenship. 

18th. Certificate of no suit pending (by clerk of county). 

19th. Sworn application of claimant for patent. 

20th. Certified copy of original notice of location and abstract of title. 

21st. Agreement of publisher not to hold United States responsible. 

22d. Transmission of papers to land office with $10 register and receiver's fees, with 
request for order of publication. 

23d. Order of publication. 

24th. Affidavit of claimant that notice and plat remained posted on claim during 
sixty days of publication. 

25th. Affidavit of claimant to costs in case. 

26th. Affidavit of printer that notice was published. 

27th. Certificate of register that plat, field-notes, and notice were posted in his office 
sixty days. 



472 PUBLIC LANDS. 

To the above maze of red tape add the exorbitant fees of the surveyor-general, which 
on this coast range from $25 to $40 in each case ; the local land office fee of $10, and 
the printer's charge of $15 and $30 in each case, and is it to be wondered at that so 
few miners seek to obtain title under the present law. But the above expense is not 
all ; in order for the miner to engineer his claim through to patent he must call to his 
aid the services of an attorney, which never are less than $50 and sometimes reach 
$500. 

We will now eliminate some of the red tape and state what we believe to be neces- 
sary steps for a miner to take in order to obtain a patent. 

1st. Let the claimant make his application for survey of his claim direct to the dep- 
uty surveyor, this will save one month's time in this State. 

2d. Let the deputy surveyor make the-survey and return a transcript of the field- 
notes to the surveyor-general. Abolish all fees to the surveyor-general. 

3d. After the survey is made let the claimant post upon the claim for sixty days his 
notice of application for patent, giving a description of the claim by the field-notes. 
No plat is necessary to be posted. 

4th. At the expiration of the sixty days let the claimant make his application for 
patent to the land office, showing his title, amount of improvements, citizenship, &c, 
as at present, and pay his acreage. Abolish the publication of notice, it does no good, 
not one miner in fifty ever sees a copy of the paper containing the notice ; with equal 
propriety you might require the pre-emptor of agricultural lands to publish a notice. 

22. There ought to be a limitation to the possessory title to a mining claim, and the 
claimant should be compelled to acquire title from government within two years from 
date of his location, and where claims have been held and marked for a series of years 
the owners should be compelled to obtain title or commence proceedings therefor 
■within one year. 

PLACER CLAIMS. 

1. About one-tenth, and mostly surface diggings. 

2. I am. Have spent several years in mining, and have acted in the capacity of 
United States deputy mineral surveyor. 

3. Not less than two years and often five and seven years to obtain United States pat- 
ent without contest and twenty-four hours to obtain possessory title to a mine without 
contest, and a lifetime with contest. 

4. The experience of others in this vicinity corroborate the above answers. 

5. They are defective. 

6. There is no time fixed in the present mining law in which the applicant for patent 
must pay for the land embraced in his claim ; consequently parties to my personal 
knowledge have made application for patent and then rested their case, and worked 
the claim out and gone elsewhere; hence in many instances the government never re- 
alizes a dollar for the ground. (See my answer to question 21 under caption of lode 
claims.) 

.7. No titles are obtained for non-mineral lands. 

8. It has not. 

9. I do not. 



Testimony of J. L. Morrow, merchant, town of Heppner, Umatilla County, Oregon. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1. 

1. J. L. Morrow ; town of Heppner; merchant. 

2. Fifteen years. 

3. Not any. 

4. My experience has been limited. 

5. Can't call to memory any. 

7. We have complete variety. Mountains covered with timber, plains undulating 
and covered with grass and every variety of soil ; both pastoral, agricultural, mineral 
and timber. 

8. My opinion is the pastoral lands of this county ought to be surveyed and sold in 
lots of 1,000 acres, timber lands sold in lots from 40 to 100 acres. 

10. My opinion for this part of the country the land system of disposing of lauds is 
as good as can be. However, I would subject to survey all this country and sell in lots 
of 1,000 acres and limit each man to that amount. 

AGRICULTURE. 

1. Can only say we have good climate, very seasonable, plenty of water for irrigation. 

2. October 1 ; sufficient amount, and ceases about July 1. 



PUBLIC LANDS. 473 

3. My impression is the great mass of the country can be cultivated withouti irrigation. 

5. Vegetables of every variety ; fruits, grain, &c. 

6. Can't say; just owing to location and soil. 

7. Small creeks running all through the country. 

8. Don't think irrigation injures the soil. 

10. The country is full of small creeks and as it passes through the country it is used 
as they want it. 

12. One-fourth. 

13. Yes, and allow 1,000 acres to each settler. 

14. Yes. Yes; to 1,000 acres. 

15. Ten acres to every head. 

17. Don't know. 

18. Grass is diminished. 

19. Not any. They could be confined in safety in limited quantities. 

20. Yes. 

21. Plenty of water. 

22. About five to every beef. 

23. Diminished. 

24. No. 

25. Not any. 

26. One half -million ; herded in lots from 1,000 to 3,000. 
28. Yes. 

TIMBER. 

1. Fully one half of this county is timber lands — pine, fir, tamerack, principally. 

2. Not any, except for ornamental purposes. 

3. By sale. A portion of our country is mixed — both timber, agricultural, and pas- 
toral. In land of this kind I would sell in lots of 1,000 acres ; in dense timber, in lots 
from 160 to 200 acres. 

4. Yes ; throw it open to settlers at reduced rates. 

6. Move the Indians, and forest fires cease. 

7. No unnecessary waste in this part. 

8. Just enough for immediate use by settlers, in fencing, &c. 

9. Yes. 

LODE CLAIMS. 

1. None. 

We have both placer and quartz mines, but my experience is very limited. 
Very respectfully, 

J.L.MORROW. 



Testimony of Bobert Mingus, Tuscosa, Oldham County, Texas. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1. 

Tuscosa, Oldham County, Texas, December 2, 1879. 
Public Land Commission: 

Sirs : In answer to the questions contained in your circular, I beg to submit the 
following : 

1. Robert Mingus ; Palo Duro Canon, Staked Plains, Panhandle, Texas. 

2. I have wintered sheep in the Panhandle of Texas during the past three years, but 
my residence has been for six years chiefly in Colfax County, New Mexico, and to 
which section my replies will be mostly directed. 

3. I have never even sought to acquire title to any public land. 

4. 5, 6. There seems to be no difficulty in getting as many claims as maybe desired. 
Frequently several miles along a stream are occupied and controlled by one man, the 
titles to these lands being had, in many cases, by hired perjurors. I might add that 
it would be impossible to prosecute the stock business, in many sections, if the pro- 
visions of the land laws were strictly executed. 

7. In addition to the mountainous portion of Colfax County, there is considerable 
mesa country very suitable for summer grazing ; the balance of the county is prai- 
rie ; it consists of" pastoral, mining, timber, and agricultural lands. The same state- 
ment will apply to the counties of Mora, San Miguel, and, I believe, to the greater 
part of New Mexico and Colorado. 

8. A thorough survey under competent charge is the only method by which the land 
can be properly classified. 

9. No answer. 

10. The existing system is probably as good as could be devised for agricultural 



474 PUBLIC LANDS. 

lands ; but as nine-tenths of the country is only adapted to pastoral purposes, the 
present plan does not meet the wants. I would lease and sell land, in addition to ex- 
isting privileges, in large or small quantities, to actual settlers. 

AGRICULTURE. 

1. Climate moderate ; rainfall limited ; length of seasons varies very much with 
altitude ; snowfall considerable in the mountains and but little on the prairie ; water 
for irrigation extremely limited. 

2. Some little rain or snow is expected in March and April, which starts the grass ; 
very little rain in Mayor June; in July and August it rains every day around in 
spots ; in September and October, dry ; not more than one or two storms in November, 
seldom lasting over twelve hours ; December, January, and February are probably 
more stormy than November. If the whole rainfall of the past twelve months had 
been concentrated at the time most needed for agricultural purposes, it would have 
been decidedly insufficient, and this would be the case eight out of ten seasons. 

3. None. 

4. Little. 

5. Wheat, barley, corn, oats, vegetables, &c. 

6. No answer. 

7. Some land can be farmed on most of the running streams. On the Canadian, 
Pecos, Rio Grande, Mora, and Vermejo Rivers there is considerable farming done at 
the present time. The Rio Grande and Pecos Rivers run through very rich valleys, 
which are capable of producing most anything that grows. Since the advent of rail- 
roads, however, even these rich valleys will not be able to compete with Kansas in the 
production of grain ; but they can spread themselves in most any other direction with 
profit. 

8. Crops of wheat, oats, barley, some corn, potatoes, &c, are grown on the head of 
Dry Cimarron River, Colfax County, New Mexico, about 7,000 feet altitude. 

9. No answer. 

10. Very little, if any, water remains to be taken up in Colfax County, and I believe 
this statement would apply to the neighboring counties, to a considerable portion of 
New Mexico, and to a still greater extent of Colorado. On surveyed lands, under the 
homestead and pre-emption acts as well as by custom, which permits a settler to own 
and control by the erection of cabins from one to ten claims. On unsurveyed lands a 
cabin, and in many cases four logs, a "foundation" as it is called, control water 
rights. 

11. I believe there is some trouble at times over water rights for irrigation purposes. 
In some sections there may be a dispute between stockmen over water privileges — 
especially is this liable to occur between the cattle and sheep interests. 

12. In Colfax County, outside of what might be termed mineral land, about 999 
acres out of every 1,000 is adapted to pasturage only, and this statement will apply 
to all of New Mexico, California, and Arizona. 

13. Yes ; at least 10,000 acres. 

14. Yes; the quantity sold to each person ought to be limited. 

15. Thirty acres ; this I should say was the general average of California, New Mex- 
ico, and Texas. 

16. Two hundred head of good cattle. 

17. In thickly settled portions of Colfax County, from 15 to 20 head of cattle per 
square mile. In other sections not one-tenth that number. 

18. I notice in six years very little change, where the range has not been over- 
stocked. 

19. Very little fencing done in New Mexico for any purpose whatever. Stock could 
be fenced in if there was suitable shelter inside the inelosure. During a storm they 
require natural or artificial shelter. Texas stock would carry away any barrier in the 
fence line in a case of emergency. 

20. Directly. 

21. In Colfax County, the Canadian, Dry Cimarron, Red, Vermejo, and Cimarron 
Rivers, the Uiia de Gata, Chiconia, Crow, Rayado, Chico, Palo Blanco, Don Carlos, 
and Ute Creeks, the Tenaga, Carrizo, Ponca, Tramperos, Cenigilla la Barro, Rafael, 
and Currumpaon arroyos, and various other small streams, arroyos, springs, and lakes. 

22. Seven head. 

23. I can see no change where the range has not been overstocked. 

24. An experience of five years in Colfax County, in the heart of the cattle range, 
requires a positive " Yes." 

25. There is a prejudice among all cattle men respecting the sheep interest. Many 
of these cattle men claim, and no doubt they are honest in their opinion, that sheep 
will drive cattle entirely off their accustomed range ; that the hoof of the sheep poisons 
the earth — directly the reverse of the old Spanish proverb. There have been frequent 
serious disturbances in Colorado in times past, especially in Huerfano County. In Col- 



PUBLIC LANDS. 475 

fax County, New Mexico, there have been Mexican sheep-herders murdered within two 
years, and I recollect of two cattle men being shot by a Mexican sheep-herder several 
years ago in my neighborhood. There has been no disturbance in Colfax County be- 
tween the cattle and sheep interests which properly belong there ; some ill-feeling 
probably on the part of some particular individuals, but it has never gone any further, 
the sheep men, as a rule (outside of the traveling Mexican herds), confining their stock 
to a specified range, while the cattle interest claim no particular range, except as to 
sheep, but the whole country in general, and which necessarily includes all the sheep 
ranges. 

26. Don't know the number of cattle and sheep in Colfax County. Cattle are not 
herded. Sheep are herded in flocks from 1,000 to 3,000 head. 

27. The present system of disposing of government land in this country has always 
seemed to me entirely unsuited to its one valuable quality. Outside of the mineral land, 
the only land worth taking into consideration is the pastoral land. Very little im- 
provement can be made in the present unsystematic way of conducting the stock 
business until stockmen own their ranges. In disposing of lands for pastoral pur- 
poses, care must be taken to protect the settlers who have already acquired lands un- 
der the present laws. I would therefore allow and reserve for each quarter-section 
claim (160 acres), and adjoining thereto, forty full sections (25,640 acres) for pastoral 
purposes. These settlers should be required to buy or lease all or any part of these 
reserved lands within three years, or else forfeit their right to the especial reserva- 
tion. Whatever land is not reserved for these settlers should be sold or leased in any 
sized tract, not to exceed, however, 160 full sections (102,560 acres), and only to actual 
settlers. The water privileges might be in addition to this amount — say to the extent 
of one full section (640 acres). The price of land on the water should be $1.25 per acre, 
which would protect the farming interest, while the grazing land should be at 20 cents 
per acre. The rent about 6 cents and 1 cent per acre. The timber ought not to be 
disposed of ; it should be reserved for the use of the settlers, under proper restrictions ; 
the grazing privileges, however, could be sold ; the owner of this privilege would nat- 
urally act as a guardian over the timber. Purchasers and lessees of land should be 
required to stock it to one-fourth its capacity within a stated time. These are the 
main features of a plan for disposing of the government land in this western country, 
and I believe if a system embracing these ideas could be adopted much good would 
result therefrom. A great deal of land very distant from water, unproductive now, 
would soon be adapted to stock by the sinking of wells and the making of reservoirs. 
The government would derive a handsome revenue directly and indirectly ; it would 
place the stock business on a permanent basis ; the production would not only be in- 
creased, but the quality would be vastly improved ; it would settle up the country 
quickly and permanently; it would end the hostilities between the cattle and sheep 
interests, and, finally, it would necessarily be a big agent in settling the Indian ques- 
tion. 

28. I believe there is no trouble in ascertaining the corners of surveyed lands in Col- 
fax County. 

Timber and mining questions unable to answer. 
Respectfully submitted, 

ROB'T MINGUS. 



Testimony of T. C. Bailey, Salt Lake City, Utah. 

Salt Lake City, Utah, December 8, 1879. 

Sir: Having been requested by General Frederick Salomon, surveyor-general, and 
Colonel John B. Neil, register of the local land office in this city, to submit my views 
upon the several subjects of which the honorable Commission takes cognizance, I have 
the honor to submit the following : 

I have been connected with the public land surveying service for about eleven years, 
in various capacities, as chief clerk iu the surveyor-general's office in Montana and 
Utah,_United States deputy surveyor and land agent, and therefore should know, from 
such a long experience something about the land laws of our country. 

THE CLASSIFICATION AND SURVEY OP THE I^JBLIC LANDS. 

I deem the present classification under the following heads to be sufficient, viz : Ag- 
ricultural, coal, mineral, timber, irrigable, and desert ; grass lands are included under 
the first head, as also should pastoral lands. 

The present rectangular system of public surveys cannot be improved upon as I can 
see, except in one instance, and that is to allow surveys of five and ten acre lots to be 
made in narrow canons where the townships and section lines cannot be run, and allow 



476 PUBLIC LANDS. 

settlers to enter said lots by five or ten acres under the present laws ; these lots to be 
numbered on the plats by lot numbers in red ink in each section, keeping up the town- 
ship and range as now. By this means the good land can be surveyed and the settler 
can enter the land he wants without being compelled, as now, to enter not less than 
forty aores and thereby get more rocks and mountain than good land. I do not advise 
any departure whatever from the plan now used in designating the public surveys by 
section, township, and range. This plan is definite and sensible. No better plan has 
ever been devised. If a system of triangular surveys are instituted at this late day 
confusion in their designation and locus will surely arise. Note the confusion now ex- 
isting in the triangular and even rectangular surveys of mining claims. Only allow 
the surveyor to make subdivisions into the five or ten acre lots above spoken of wher- 
ever necessary to take in good land and exclude the worthless, and you will have it ; 
nothing further is required. 

The present plan of surveying the public lands by contract has been carried on for 
a great number of years, and it is no small matter to devise or suggest a better plan to 
meet all the requirements of the government and the settler. The present plan, I must 
admit, has at times been abused by deputy surveyors, but I venture to assert that this 
service has been less abused and carried out with as much integrity as any other 
branch of the public service. No matter what errors are made the designation under 
the present system of any piece of land, no matter how small, can be made certain. 

Under the contract system the deputy is paid so much per mile to make his surveys 
and return his notes and plats. Out of this rate per mile he is to pay all of his expenses, 
such as for instruments, his horses, wagons, camp equipage, assistants 7 " grub," break- 
age and damage of his solar compasses, &c, &c. — all to be paid for out of his own 
pocket, much of it months, and even years, in advance of his receiving a single dollar 
from the government ; so that when his accounts are finally settled and paid the poor 
hard-worked deputy foots up and finds that he has barely made both ends meet. 
Now, as time is money with him, he must hurry with his work and make as many 
miles a day as possible. He cannot afford to stop and wait to see that his axman sets 
the corners correctly, as instructed; nor can he afford to watch his chainmen in stick- 
ing every pin and measuring every chain and taking the distance to notable objects. 
These men are sworn to do their work correctly, and so the deputy must of necessity 
rely on them ; otherwise, were he to take the time to watch them continually, he would 
make but slow progress and come out at the " little end of the horn " financially ; 
therefore he must hurry up and " make time." Herein mistakes and errors are caused, 
which are corrected at once u within limits," and the surveyor hurries off on his lines 
again. 

Now, the only way I see to avoid this evil is for the appropriations to be made as 
now, only with much more liberality, for all the surveying districts, and to appoint 
one or-more competent, skilled, experienced surveyors in each surveying district at a 
fixed salary (liberal), payable out of said appropriation, whose duty it shall be to 
enter into bonds and survey the public lands under the orders and direction of the 
district surveyor-general, making his returns as the deputies do now, receiving a fixed 
salary whether he is kept busy or not, the surveyor's expenses to be paid by vouchers, 
with accounts approved by the surveyor- general, out of the regular appropriation, 
and to hold the surveyor-general responsible, as well as the surveyors and their sure- 
ties, as to any fraudulent accounts submitted for payment. This plan would avoid 
the necessity of "making time" on the survey. The surveyor's pay would be the 
same whether he run one mile or ten in a day, and as he and his expenses are paid, he 
can afford to take the time to see that every corner is properly set and marked, and 
that true distances are given and that true lines are run. I therefore, if any change 
from the contract system is made, recommend the above plan as the most sensible, 
practicable, and feasible. The only argument against it will be, I think, the liability 
of rendering large fraudulent expense accounts and the difficulty of detecting them. 
I am satisfied that the surveys under this plan would cost something more than uuder 
the present plan, and they should in order to insure correctness. The practice of the 
government of late years has been to decrease the rate per mile for surveying and to 
more than doubly increase the labor, much of which is wholly useless and "tends to 
impair the efficiency of the service. The manual of surveying instructions and all 
the subsequent instructions issued need radical amendment and codification. 

It would be unwise to consolidate the surveyor-general's offices under one head at 
Washington. The people of the West would rise up in mass, and say no ! The argu- 
ments against this are obvious to an unprejudiced mind. The surveyor-general and 
local land offices should be consolidated under one head. This would save the salary of 
two officers of $3,000 each and the expense of making the triplicate township plats, 
save office rent, fuel, furniture, stationery, &c. This consolidation should be entitled 
and named " United States land and surveyor-general's office." The officer in charge 
should l)e allowed a salary of at least $3,500, the chief clerk $2,400. A law clerk, to 
hear and govern contest cases and give his opinion thereon, and he should be allowed 
a salary of $2,400. Other clerks could be employed as the service required, with sal- 



PUBLIC LANDS. 477 

aries not less than $1,500 per annum, one of which could be placed nnder bonds and 
act as receiver. As the money received must tally with the lands sold, there can be 
no room to make false or fraudulent returns of the cash received. This is my idea of 
consolidation; but as this plan would cut off a good many fat offices, it do doubt 
would be violently opposed if a bill for that purpose should ever be introduced in 
Congress. 

The surveys under the deposit system work well. As an inducement to the depositor, 
the government should allow him a reasonable interest on the deposit money from 
the date of deposit until the triplicate certificate is surrendered in payment for land. 

Desert, grass, pasture, coal, mineral, and timber land should be allowed to be sur- 
veyed under the deposit system, and the triplicate certificates received in payment 
for any land. 

The price of desert and pasture land should be reduced. A party wishing to enter 
desert or pasture land unsurveyed should be allowed to deposit the cost of the survey, 
and the surveyor to survey the land only which the applicant wishes to enter, without, 
as now, being compelled to survey all the surveyable land in the township, and the 
depositor should have, in view of his advancing the money for the survey, some sort 
of priority of right in entering the land, provided there are no prior legal claims. 

It has been suggested that desert, pasture, and grass lands be surveyed in such a 
way that each claim shall have a certain water front on a stream, lake, river, &c. T 
making the center of the stream the dividing line between the claims, and the claims 
runniug back from the stream in such a way and in such a shape so as to include the 
laud sought to be entered by the claimant. This plan would cause a departure from the 
rectangular system, which, as I have before remarked, would create couf usion. My idea 
is to survey the lands sought to be entered by the claimant, under the deposit system, 
by section, township, and range ; and if found necessary by the surveyor to subdivide 
into 5, 10, and 20 acre lots, and then allow the claimant to enter such lands as he re- 
quires, up to two sections more or less, whether in compact, contiguous form or not. 

The present law governing the deputy surveyor in the field, requiring him to survey 
only certain surveyable lands and holding the surveyor-general responsible for such 
surveys, is difficult to follow, and should be repealed. How is a deputy to know what 
kinds of land his contract may cover ? He cannot afford to go into the field and run 
lines of reconnaissance in advance of the letting of the contract to see if the lands are 
surveyable under the law. Neither can the surveyor-general do this ; there is no law 
"for it, no way he can be or even his expenses be paid, yet the law holds him respon- 
sible for the surveys, if they include lands other than those contemplated to be sur- 
veyed under the law. 

It is true the law allows the surveyor-general to go out and inspect the surveys dur- 
ing their progress or after they are executed. This interferes with his office duties, and 
therefore he must examine, in a few days or weeks at most, the surveys which required 
three, four, six, or eight months to execute in the field. Such an examination is neces- 
sarily superficial and unsatisfactory, and really amounts to nothing. 

My idea is to let the contracts — if the contract system is adhered to — and to allow 
the deputy to survey all the land covered by the same which he can chain and run 
over, whether it is arable land or not. This would save the uncertainty and confusion 
which now exist in the surveys and in the adjustment of the deputy's accounts. All 
the land must be surveyed sooner or larter anyway, and it will cost no more now than 
it will fifty years hence ; as a proof of this, the surveying rates are no more now for 
lines in open country than they were fifty years ago. 

The following bill should become a law ; it would save settlers much expense and 
litigation : 

" H. R. 3880. 

"A bill to authorize the resurvey of lands where the surveys are fraudulent, erroneous, 
or obliterated, and to legalize a certain resurvey. 
" Be it enacted by the Senate and House of Representatives of the United States of America 
in Congress assembled, That the Commissioner of the General Land Office be, and he is 
hereby, authorized to resurvey the subdi visional lines of townships that were public 
lands and have been disposed of by the United States, and also public lands which 
remain undisposed of, when applied to for that purpose by a majority of the settlers 
being land owners in any township who have obtained titles to their lands, where the 
original surveys were made by United States deputy surveyors, but are proved, to the 
satisfaction of the Commissioner of the General Land Office, to be either fraudulent, 
erroneous, or totally obliterated in the field. The said Commissioner shall have the 
p*ower to cause such lands to be resurveyed by a competent United States deputy sur- 
veyor, under the immediate direction of a United States surveyor-general ; and where 
there is no such surveyor- general by reason of his office having been discontinued 
under the provision of section 2219 of the Revised Statutes of the United States, in 
that case the resurvey hereby authorized shall be executed by an experienced surveyor 
familiar with the system of the public land surveys, and to be designated by the county 



478 PUBLIC LANDS. 

commissioners or board of supervisors of the county in which the lands are situate, or 
by a majority of the voters of the township or townships embracing said lands, to be 
ascertained in such manner as the said county commissioners or board of supervisors 
shall direct, subject to the approval and the immediate direction of the Commissioner 
of the General Land Office ; the resurvey to be executed in conformity, as nearly as 
practicable, with the field-notes, the lines, and corners of the legal subdivisions shown 
on the plats by which the lands were originally disposed of : Provided, That in the 
making of said resurvey s no recognizable landmark or monument of the official sur- 
veys which mark the corner of any lands already disposed of by the United States 
Government shall be moved or disturbed, but, when so found, the said monument shall 
be renewed, and to be perpetuated as rhe landmark of the resurveys. 

u Sec. 2. That the cost of the resurveys herein authorized shall be paid by the afore- 
said land owners under the deposit system provided for by sections 2401 and 2402 
of the Revised Statutes of the United States : Provided, That the whole expense of 
resurvey ing and marking the lines shall not exceed $12 for every mile that shall be 
actually run, surveyed, and marked. And the plats of such resurveys shall be con- 
structed in strict conformity to the field-notes thereof, and the description and con- 
tents of legal subdivisions shall be conformable thereto, be the acreage of the subdi- 
visions more or less than that expressed on the original plat of survey by which the 
lands were disposed of. 

" Sec. 3. That it shall be the duty of the surveyors-general of the proper surveying 
districts to transmit approved township plats of the resurveys hereby authorized to 
the registers of the proper land offices and to the Commissioner of the General Land 
Office, to be filed with duplicates and triplicates of the original plats. 

" Sec. 4. That a resurvey of township ninety-six north, range fifty-one west of the 
fifth principal meridian, in Dakota Territory, as executed by H. J. Austin, at the re- 
quest and cost of settlers therein and to their entire satisfaction, is hereby legalized : 
Provided, That the field-notes of the resurvey, when submitted to the surveyor-general 
of Dakota Territory, shall be found by him to have been executed in conformity to 
the existing laws, and in accordance, as nearly as may be, with the legal subdivisions 
of the original plat of the survey by which possessory rights may have been acquired 
by the settlers." 

The government should advance a certain sum to deputy surveyors, before entering 
upon their work in the field, to enable them to meet the expense of their outfit with- 
out borrowing money from the banks at exorbitant rates of interest. This amount 
could be deduced from the accounts of the deputies, when the same were ad- 
justed. The money advanced should be sent to the surveyor-general, and through 
him paid to the deputy, under proper instructions, or paid on checks of the deputy, for 
supplies, &c. The deputies and their bondsmen would be, of course, held for the 
money so advanced. This has been the practice in other countries, especially in Ger- 
many, and I am told that the practice was never abused. 

surveyor-general's office. 

The salary of the surveyor-general should not be less than $3,000 per annum, and 
the chief clerk's salary in all important districts should be raised to $2,000 per annum. 
The appropriation of $1,500 for contingent expenses for the office in Utah is much less 
than that required to run and keep the office in good shape. An appropriation of 
$2,500 for that purpose would be about the proper sum required annually. The appro- 
priation for clerk-hire in the Utah office of $3,000 falls short of even paying the chief 
clerk and chief draughtsman ; the deficiency thus created, and the salaries of the 
other three clerks, must therefore be paid out of special deposits when such deposits 
happen to be sufficient for that purpose, which is not always the case. The surveyor- 
general should be allowed to make certified copies from his records, and be permitted 
to charge 22£ cents per folio for manuscripts and, say, $3 for copies of full township 
plats, and $2 for fractional. 

PRE-EMPTIONS. 

The decision of the United States Supreme Court in the case of Atherton vs. Fowler 
(0 Otto 513), virtually annulled the law requiring filings or entries to be made within 
three months in certain cases. It seems from that case that any person can settle 
upon the public domain and improve it without filing or applying for a patent, and 
hold the land against the world for any length of time. The decision and the statute 
should not remain in conflict. 

FILINGS. 

Where a party files a declaratory statement for a certain tract of land, and does not, 
from some good cause, carry his filing to final entry, he should be allowed to tile again, 
provided he did not sell his right to the laud described in his first declaratory state- 



PUBLIC LANDS. 479 

merit. As the law allows a person 160 acres under the pre-emption laws, he should he 
allowed to make a second, pre-emption if his first entry was for a less quantity than 
160 acres.. 

REPAYMENTS. 

The law, as it now stands, allows repayments only when the land sold was illegally 
sold, or words to that effect. The law should he so amended as to allow repayments 
to claimants in every instance where the claimant, for any reason, could not oh tain 
his patent. There are hundreds of cases where one party has proved up, paid his 
money for the laud, and obtained his final receiver's receipt ; in the mean time, before 
receiving his patent, his entry is canceled for some cause; then another files upon, 
enters the same land, and pays again the same amount of money for the land that was 
paid by the party who first entered. I hold this to he absolute robbery, and any one 
with common sense will say so, and recommend that the law ought to he amended and 
made retroactive. 

PRE-EMPTION PROOFS. 

The law now allows pre-emption proofs on final entry to be made before a county 
clerk, but compels the claimant to come into the land office to make his affidavit, no 
matter how far away he lives (often as much as 300 miles), while in homesteads the 
final proofs and affidavits can all be made before a county clerk. This is very incon- 
sistent and absurd. The pre-emptor should have the same privilege as the home- 
steader, and therefore the law should be so amended as to allow the former to make 
his affidavit before the county clerk or a notary public anywhere in the land district 
in which the land sought to be entered is situated. I do not see why an oath is not as 
binding before a notary public as before a county clerk; and another thing (it is often 
so in this western country), that the counties are so large that the clerk's office is 
as far away from the claimant's land as the local land office, whereas a notary public 
could be in any isolated settlement. 

County clerks should- not be allowed to make out filings and entry papers for claim- 
ants and act as attorneys for them in any case. The local land officers cannot do so ; 
then why should the county clerks have more authority than the register and receiver ? 
Please have a law passed to this effect. County clerks make more blunders, any way, 
in land entries than any one else. This is patent to any one who has ever been familiar 
with the laud laws. 

HOMESTEADS. 

The law governing homesteads should be as liberal to the settler as are the pre-emp- 
tion laws. A pre emptor is not required to make oath when he files his declaratory 
statement ; therefore why should a homesteader ? It does not make his first entry any 
more binding, as I take it. Make a law to allow both sort of claimants to file their 
declarations without being sworn, and let the final proofs cover the whole ground of 
proof as to residence and cultivation or improvement, the same as now done in cash 
entries. Where a party has made a homestead of less than 160 acres, he should be 
allowed to make another entry covering the deficiency up to 160 acres. Where, from 
some good cause, a party has filed a homestead, and for such cause cannot carry it to 
final entry, he should be allowed to enter again, provided he has not sold the land 
covered by his first entry. 

Notaries public should have power to administer oaths in all homestead cases for the 
same reason as given under head of pre-emptions. 

The following paragraph (page 6 of circular General Land Office of October 1, 1878) 
should be amended by law so as to read thus : 

"Where the applicant is prevented by reason of bodily infirmity, distance, or other 
good cause, from personal attendance at the district land office, the affidavit may be 
made before the clerk of any court or notary public for the county or in the district 
within which the land is situated, under section 2294 of theEevised Statutes." 

A homesteader who makes entry at the local office does not swear that he lives on 
the land. Then why, I ask, should he be compelled to do so before a county clerk ? 
This is an inconsistency in the law which should be amended. 

CANCELLATION. 

When a claimant files his relinquishment of his homestead the land covered by 
said homestead should be made open to entry at once, without waiting for months for 
the cancellation to come back from Washington. Such a rule as this would facilitate 
business very much. 

CONTESTS. 

Where a party brings contest for abandonment, or any other cause, and the entry 
against which he brought the contest is canceled, the contestant should have thirty or 



480 PUBLIC LANDS. 

sixty days in which to file on the land. I think this nothing bnt justice. Many more 
contests would be instituted if the law was so amended, and many fraudulent entries 
thus prevented. 

WITNESSES. 

The witnesses in contested cases should be compelled to attend at the land office at 
the hearing. As the law now stands witnesses can attend or not. It is entirely op- 
tional with them. Many a contestant, and even defendant, have lost their cases be- 
cause of this defect in the law. 

COSTS AND EXPENSES. 

The law compels the contestant to pay the expenses of contest. This is unjust. He 
should be required to pay the costs at time of hearing; but if the case was decided in 
favor of the contestant then the cost to be collected from the defendant by due process 
of law with which to reimburse the contestant for the amount advanced at the time 
of trial. 

DATE OK HOMESTEADS. 

Homesteads now date and take effect from the date of entry only. Why should not 
a homestead entry relate back to date of settlement just as well as a pre-emption ? If 
a claimant has been living upon his claim for five years or over when he comes in to 
make his entry, why not let him have credit back for the five years, and not compel 
him to live five years longer ? He might have settled upon un surveyed land, and have 
lived thereon for twenty years, but could not make his entry until the land was sur- 
veyed and the triplicate plat filed in the land office. Now, as soon as the plat is filed ho 
comes to make his entry, and as he has lived on the land over five years he asks credit 
for that time at least, and permission to make final proof at once without making the 
usual first entry. Should not his request be granted ? This would only be simple 
justice to the hardy pioneer. Therefore, please have the law amended to cover such 
meritorious cases. 

PUBLICATION. 

The late law requiring claimants to publish a notice of their intention to make final 
proof is onerous, useless, impracticable, and should be repealed. What is the intent 
and aim of such a law? It does not require the claimant, nor does it authorize him, 
to state in his published notice to all the world to come in and file an adverse claim 
within the thirty days else all clajms will be barred, &c. It does not even authorize 
the register or receiver to receive and file an adverse claim, and stay proceedings or 
order a hearing. I therefore ask, of what use is such a law? It benefits no one ex- 
cept the editors of one-horse country papers, who charge $5 for publishing each notice 
of final proof. It is unjust to the settler, and just doubles the cost of making his final 
proof. But the worst feature in the act is to compel the claimants to name their wit- 
nesses in their published notices. We will state a case : Suppose A publishes notice 
that he intends to make final proof, and names B and C as his witnesses. After the 
thirty days' publication is up A searches for his witnesses, but cannot find both or even 
one of them. They may have died, got drowned, hung; may be in jail, penitentiary, 
or insane asylum ; may have skipped the country between two days. This, you see, 
places A in a quandary. What is he to do about it ? The local officers hold that Mr. 
A must make a new publication, and name two more fresh witnesses from the country. 
He does so, and at the end of the thirty days Mr. A again searches for his witnesses, 
but to his dismay or "bad luck" the witnesses are"non comatibus" a second time. 
What must poor A do now? The register would tell him to "try again," and keep 
trying until he brought in the two live witnesses, whose names were published in some 
little obscure country paper, away down in some obscure corner, with smashed type 
and pale ink, simply to comply with the law, vrhich says that the notice must be pub- 
lished in the newspaper published nearest the land. I trust the honorable Commission 
will recommend the repeal of such an absurd law. 

SOLDIERS' HOMESTEADS. 

An old soldier or sailor should be allowed to enter 160. acres as a homestead by cul- 
tivating and improving the land without compelling him to live on the land in person 
— allow him to employ a man to reside on the land and improve it by proxy. I don't 
think any loyal person would object to such a provision in the homestead laws. 

Section 2306, Revised Statutes, should be amended by striking out the words " may 
have heretofore entered," and insert in their place have heretofore or may hereof ter enter. 



PUBLIC LANDS. 481 



TIMBER CULTURE. 



The law requires that not less than 2,700 trees per acre must be planted on a timber 
entry, and when final proof is made there must be at least 675 living and thrifty trees 
to each acre. The great difference in these numbers induces me to think that there 
must be an error in the original number of 2,700. I think it advisable to recommend 
that said number be reduced to 1,350. 



DESERT LANDS. 

Where a desert claimant has made reasonable effort to get water upon his land and 
has failed to do so within the three years, he should be granted further time to make 
his final entry. Desert entries should be assignable. 

TIMBER LANDS. 

Pre-emptors and homesteaders who still reside upon their original entries should be 
allowed to purchase 40 or 80 acres of timber lands situated anywhere in the land 
district. 

ACCRETIONS. 

The lands of this class, regarded as accruing to the public domain by reason of the 
recession of the waters of meandered lakes, slonghs, and ponds, was treated of in the 
report of the honorable Commissioner of the General Land Office for 1878, page 138, in 
which he recommends that such lands be conveyed to the States, &c. This is all cor- 
rect as far as it goes, but he says nothing in regard to such lands in the Territories. 
A law should be passed authorizing the survey of such accretions outside of old meander 
lines in the Territories under the individual deposit system, and allow the land to be 
entered as other lands. 

ROCK QUARRIES. 

There is an uncertainty in the law as it now stands in regard to the entry of quarries 
containing building- rock, unless it is marble or limestone. The law should be made 
more definite on this point. 

MINERAL LANDS. 

Locations. — Where a person has made a discovery and decides to locate his claim, he 
should have the surface lines run by a United States deputy mineral or other surveyor, 
and fix the lofus of the claim by metes and bounds, with proper reference to natural, 
permanent, and local objects. After this is done let him write out his notice of loca- 
tion in duplicate, in conformity with the survey notes, post one notice on the claim, 
and send the other to be recorded. 

Recorders. — The office of district recorder should be abolished, and the notices of lo- 
cation should be filed in the local land office within the district where the claim lies. 
A proper form for notices should be drawn up by the honorable Commissioner and 
furnished the local offices for use of miners. This would preserve uniformity in all 
location notices. 

Width and length. — Claims should be fixed at some definite width and length, say 660 
feet (one-eighth of a mile) wide, and 1,320 feet (one-fourth of a mile) long, andshould 
not be restricted by any local or district laws to a less quantity for lode claims, but 
allow the locator as much less than this as he sees proper to locate, and in all cases 
confine him to the mineral and land contained within the vertical side and end lines 
extended downward. This provision will avoid much expensive litigation, and the 
only thing that ever will. The end lines should be parallel, as nearly as may be, but 
where one claim butts up against another the course of the end lines may be governed 
by the course of the intersecting claim. 

Publication. — The time of publishing notices for applications for patents should be 
shortened from 60 to 30 days, and no notice should be published in a country newspaper 
whose life is uncertain, notwithstanding the paper is the one published nearest the 
claim. The register and receiver should be the judges of this fact. 

Deposits for office ivorJc. — Certificates of deposit for office work on mining claims should 
be made receivable by the receiver in part or whole payment for the land sought to be 
patented, and such certificates should be made assignable and used the same as certifi- 
cates of deposit for agricultural surveys. This seems to be simple justice. As the law 
now stands it makes u fish of one and fowl of the other.'" 

Deputy surveyors— Deputy surveyors should have authority to administer oaths to 
their assistants and to parties who make affidavit of the identity of the claim, and the 

31 L C 



482 PUBLIC LANDS. 

proof of improvements ; they should also be authorized to administer oaths iu taking 
testimony mentioned in Circular N of the General Land Office of November 20, 1873. 

Applications. — The practice of claimants of making applications for mineral lands by 
an attorney in fact has lately been overruled by the Acting Commissioner's decision 
in case of George S. Dodge, in Copp's Land Owner for November, 1879, page 122. I see 
that the law clearly sustains the decision. Mine owners may own claims in Utah and 
reside in New York, or some other distant port or inland town, yet the above decision 
requires them to come to Utah, at great expense, inconvenience, and loss of time, 
simply to sign and swear to their applications, when their agent, duly authorized, 
could do the same thing as well as the claimant, and in many cases much better. The 
ruling requiring the claimants to swear that their notices remained posted during the 
60 days' publication is onerous and unjust, and should be set aside. If these two things 
remain in force it will materially impede the miners from making applications for 
patent. Such requirements are inconsistent with sound sense and good reason and 
the spirit of the times in which we live. Therefore the law should be promptly 
amended so as to allow claimants to apply for patents either in person or by attorney 
in fact. 

Procuring titles. — The length of time consumed bet ween paying for both agricultural 
and mineral lands and the issuance of a patent for the land entered is from one to 
two years, and, unless the claimant employs an attorney in Washington to hurry up 
his case, the time may be further extended. It requires two or three years to get a 
final decision on a contested land case. There would be many more contests brought 
against attempts to make fraudulent entries if a decision could be arrived at in such 
cases without so much delay. No doubt that this is partly or totally the fault of Con- 
gress in not making sufficient appropriations to carry on and keep up with the current 
work in the General Land Office. That sort of economy is false, and is an injury to 
the country as well as the individual who expends his means, labor, and life in the 
development of the agricultural and mineral resources of the great West. 

Mineral protests. — The register and receiver should have authority to reject any pro- 
test if, after examination of the papers and hearing the evidence in the case, they, find 
the grounds insufficient to support the same in law or equity. If in their opinion the 
grounds taken are good, let them so advise the defendant, so he can commence suit in 
court within 30 da»ysfrom such notice. I don't really think it practicable to have con- 
test in mineral cases referred to registers and receivers for judgment and decree, with 
the same force and binding as a decree of a court. This would require those officers 
to be learned in the law (which many of them are not) to sit in judgment on cases 
involving, frequently, millions of dollars. If a mine is of any moderate value the 
claimants can well afford to sustain the cost of a suit in a court of law having com- 
petent jurisdiction by which to defend their rights. 

Overlap. — The practice of allowing claims to be surveyed which overlap one another 
should be discontinued. This evil is the source of much trouble and delay in working 
up the returns of the surveyor after reaching the surveyor-general's offica, and if per- 
mitted to go on, as heretofore, the intersections will become finally so confused and 
mingled together, like cobwebs, that an expert would be unable to determine one 
claim from the other. This could be obviated by obliging the parties in interest to 
settle all conflicts in court before the surveyor made return to the surveyor-general. 
Such returns should be accompanied with a certified copy of the decree of the court. 
Such returns should be made in conformity with the decree, that is to say, the survey- 
or should return his notes giving the metes and bounds of the land which the court 
may decide belonged to the claimant, whether the end lines were parallel or not. 

Where an application for patent shows none, or has no conflict on the day of filing 
in the local land office, but during the publication a protest is filed and carried to 
final decree in the courts, and decided in favor of the protestant, then the party who 
made application for patent (with his map clear of conflict) should be compelled to 
file an amended survey and field-notes, with the area in conflict, as found by the court, 
left out. This plan would not only greatly relieve. the work in the surveyor-general's 
office, but it would wonderfully relieve the department in adjusting claims, and save 
so much delay in issuing patents. 

If the foregoing suggestions are ever carried out, the laws pertaining to the public 
surveys and entry of lauds will be as near perfect, I think, as it is possible to make 
them. 

My duties, on account of press of business, have unavoidably delayed me in the com- 
pilation of this paper, but I trust it will not reach you too late to be of some service 
to the honorable Commission, and through it to the general public in the great West. 
Kespectfully submitted, 

T. C. BAILEY, 
Chief Cleric Survey or- General's Office, Salt Lake City. 

Capt. C. E. Dutton, 

Secretary Public Land Commission. 



PUBLIC LANDS. 483 

Testimony of General M. M. Bane, receiver, Salt Lake City, Utah. 

General M. M. Baiste, receiver, Salt Lake City, Utah, testified on September 10, 1879, 
as follows : 

I have heard the statements made by Mr. Niel and concur in them, bat I would like 
to make a suggestion in regard to the timber lands. If they are to be disposed of they 
ought to be disposed of in alternate tracts, the alternate tract to be owned by the gov- 
ernment, and the persons who bought a tract would protect the timber lying on each 
side of it. This would keep the timber supply a long time. The fires that are now 
raging among tho timber result from three prominent causes — the hunters cause much 
fire by recklessly starting it in the timber to drive out their game ; then the miners 
build fires recklessly ; and the Indians sometimes set fire to the trees. 

I have been very much impressed with the idea of making square locations of min- 
eral claims, that is confining the claimant to the end and side lines. This would avoid 
litigation. Nine-tenths of all the locations in this Territory are made less than 200 feet 
wide and 1,500 feet long, that is 6.88 acres. In regard to the work of mineral surveys, the 
register and myself had been informed by Mr. Lawrence, a very responsible gentleman 
who obtained patents for two mines, that when he went to look for them he could not 
find their location at all. 



Testimony of George O. M. Boutelle, civil engineer, Salt Lake City, Utah, deputy mineral sur- 
veyor and late deputy surveyor of public lands in Colorado and Utah. 

Memoranda of changes suggested to be introduced in the practice of surveying the 
public lands of the United States. 

To avoid as far as possible the always hurried and sometimes incomplete manner in 
which the work is done, and at the same time to accomplish a greater amount of work 
in a more thorough and substantial form, and at no greater expense to the government 
than at present practiced under the contract system, and to amend the " manual of 
instructions " so as to authorize the deputy surveyor in the field to do the work in the 
most convenient and economical way, the following plan is proposed to accomplish the 
desired result, viz : 

The appointment of a competent surveyor of experience, with the pay and emolu- 
ments of a major of engineers, to be known as a deputy surveyor-general, whose duty 
should be to make himself perfectly familiar with the characteristics of the whole 
surveying district ; to carefully ascertain by the closest personal examination and ob- 
servation the necessities of the present and prospective population, with a view to the 
judicious and proper expenditure of the appropriation for public surveys for each 
year where it will be of the greatest good to the greatest number of actual settlers 
upon the unsurveyed lands where the wants of the people most require it, instead of 
expending the whole or a large portion of the money set apart for surveys in extend- 
ing the lines over vast areas of worthless lands not susceptible of irrigation, and with 
no prospect of being required for occupation by a population for many years to come. 
The deputy surveyor-general should also be required to visit the parties operating in 
the field to satisfy himself by personal observation that the work is being performed 
in a proper manner and with due diligence. 

To more fully inform himself regarding the character of the country and the proper 
places in which to locate the surveys for the ensuing year, the deputy surveyor-general 
should remain in the field after his inspections of the work of the regular field parties 
have been finished to run a sufficient amount of meridian and standard lines to enable 
him to judge of the amount required for surveys the following year to keep pace with 
the constantly increasing and expanding area occupied by the population, for the in- 
formation of the surveyor-general, The deputy surveyor-general should be required 
to give bond (in the same amount as is now required of deputy mineral surveyors) for 
the faithful and honest performance of his duty and the proper disbursement of public 
funds committed to his charge. 

The officer in charge of the surveying parties in the field and to whom is confided 
the duty of running, measuring, and marking the lines upon the ground, should be 
regularly employed (after passing a satisfactory examination before the surveyor-gen- 
eral and deputy surveyor-general) during his term of service in the field, with the pay 
and emoluments of a captain of engineers, and be required to give bonds for the faith- 
ful performance of his duty and the proper expenditure of such public money that 
may come into his possession. 

The incidental expenses of parties in the field should be paid by the surveyor in 
charge of the party, who should be furnished with money for this purpose by the sur- 
veyor-general (from a small portion of the annual appropriation to be placed to his 



484 FUBLIC LANDS. 

credit for this use) to be properly accounted for by duly certified vouchers. The oper- 
ations in the field should be confided only to those who would do a reasonable amount 
of work in each day, so as to make the expense to the government no more than it is 
now under the present contract system with the same amount of work performed and 
removing every inducement to the deputy-surveyor to slight his work in order to save 
himself expense, by employing him as a salaried officer instead of by contract as at 
present. 

The poverty of the present " manual of instructions" in the matter of general in- 
structions applicable to a mountainous country is manifest, and the necessity for which 
seems to have been lost sight of in the multiplicity of minor and unimportant details 
to the exclusion of instruction and valuable generalities. Many cases arise where 
the deputy surveyor is required to exercise his own judgment where no parallel case 
is given that could be made applicable, and although the work may be perfectly cor- 
rect as far as the location of the corners is concerned, the deputy surveyor runs the 
risk of having his work returned " disapproved" and unpaid for because it was not 
exactly in accordance with any precedent set forth in the manual. The deputy sur- 
veyor should be left to a certain extent to the dictates of his own common sense, and 
if he be an officer of science, as he should be, methods of measuring the lines and 
establishing the corners at their proper place will readily occur to him without follow- 
ing exactly the manner of procedure indicated in the manual. 

The present law requires that each of the north and south lines in the subdivision 
of a township shall be exactly eighty chains in length, except those closiug on the 
north and west boundaries, and the limit of closing of the east and west lines, except 
those on the west tier of sections, is one hundred links. Instances often happen 
where it would be vastly more convenient and accurate to run west from the east 
boundary and then closing south on the southern boundary within the prescribed 
limit, returning and correcting the position of the quarter-section corner. In many 
cases time may be saved, .and what is still more important greater accuracy may be 
attained thanin following the despotic rule to require all lines bounding sections on 
the east and west to be run north. Should not the surveyor be left at liberty to run the 
lines north, south, east or west, as the case may be, requiring only that any two of 
the four sides of a section shall be equal and parallel? For convenience of reference 
the field-notes should be arranged as is now practiced, but the operations in the field 
need not be conducted in the same order as therein arranged where there would be in- 
creased accuracy by a departure from it. To the writer of this memoranda it occurs 
that next in importance to the proper establishment of the boundary monuments on 
the lines of the public surveys is to render them as permanent as practicable without 
too great an expense and to mark them in such a way as to be an improvement on 
" notching the stone corners " and intelligible to any explorer of ordinary intelligence. 
In townships where stone corners abound and where no posts are used it has frequently 
become necessary to retrace the lines of the old survey where all the stone corners were 
found to enable the surveyor to identify the township and range in which he was 
operating. 

The writer would respectfully suggest that the corners may be marked in the fol- 
lowing-described manner, to wit, by a stake two feet long and two inches square, and 
pointed on the lower end and driven into a hole in the ground prepared for that pur- 
pose at the exact corner point, the top to project one foot above the natural surface of 
the ground, to be entirely covered by earth thrown up from the pits, as now provided 
by law ; the identity of the corner to be stamped upon a thin piece of sheet copper or 
zinc and nailed to the top of the stake with copper fastenings before the construction 
of the mound (and after the stake had been driven), which is to cover it and serve as its 
protection from fire or other causes tending to its destruction. The top of the mound 
raised two feet above the natural surface of the ground would cover the stake one foot 
on top, and would be sufficiently prominent to be easily found and less liable to be 
destroyed by the scratching of cattle against the post, as is often now the case. When- 
ever it becomes necessary to inspect the marks upon the little metallic card upon the 
top of the stake to ascertain its identity, a portion of the top of the mound could be 
removed, and after the examination carefully restored to its proper place on the 
mound. Comers of more than ordinary importance, such as points of intersection of 
base lines or standard parallels, with the principal or other guide meridians, may be 
marked with posts 21 feet long and 2$ inches square. Section and all other corners, 
except quarter- section corners, to be two feet long and two inches square for the posts, 
the quarter- section posts to be two feet long and U by 2 inches on top ; this difference 
would also serve to distinguish the quarter section from the secriou stakes in the. 
absence of any marks. Attention is invited to the following diagrams designed to 
illustrate the manner of marking the metallic cards to be placed on the top of the 
posts of Makes. It will bo observed that the order of the arrangement of the marks 
' n ihc cards is so unlike in the several cases that if one-halt' of the marks had been 
Obliterated by time enough could remain to convey trt an intelligent examiner their 
proper import, and enable him to determine what they were designed to represent. 



PUBLIC LANDS. 



485 



Care being taken to so arrange the edges of the metallic cards that they shall be in 
the direction of the cardinal points of the compass, a general idea of the direction 
would thus be furnished to the investigator in the absence of any instrument with 
which to determine the direction of the lines. 

The foregoing brief and imperfect outline of changes that might prove of advantage 
to the surveying service have occurred to the writer of this paper after an experience 
of more than a dozen years, partly in the field and partly in the offices of the surveyors- 
general in Colorado and Utah. It is respectfully offered for the consideration of the 
honorable Board of Land Commissioners in response to a published request for sug- 
gestions of this character. 

I have the honor to be, gentlemen, your obedient servant, 

GEO. O. BOUTELLE, 
Civil Engineer, Deputy Mineral Surveyor 
and late Deputy Surveyor of Public Lands in Colorado and Utah. 
Captain C. E. Dtjtton, 

Ordnance Corps United States Army, 

Secretary Land Commission, Salt Lake City. 
September 10, 1879. 



Intersection of the oase line and Salt Lake meridian, to illustrate the design for marking the 

corners. 






36 


I 


\ 


31 


TIN 
E 1 W 
BASE 


< 


525 
< 

1—4 


TIN 
E 1 E 
LINE 


w 




Q 


E 


T 1 S 


Eh 
i-h 


M 


T 1 S 


E 1 W 


< 

w. 


§ 


E 1 E 


1 


1 


3 


6 



Regular corner on standard line, to illustrate manner of marking. 





N 




36 

T 5 S 




m 


31 
T 5 S 


W 

E 9 W 


Q 


£ 


E 

E 8 W 


1. S T' D. 


I 


3 


SOUTH 



486 



PUBLIC LANDS. 

Closing corner on standard line. 





N 


IST'D 




SOUTH 


T 6 S 




T 6 S 


W 


Q 


^ E 


R 9 W 


O 


£ R S W 


C C 


^ 


c c 


1 


S 


6 



Interior section corner. 





N 




26 


TIN 


25 


W 


R 1 W 


E 


35 


S 


36 



Quarter section corner on a north and south line. 



35 



N 



*S 



36 



W E 

TIN. R1W. 



Quarter section corner on an east and west line. 



N 
25 

T 1 N 
W E 

±S 

R 1 W 

36 

S 



Note. — One and one-half square feet of sheet copper or zinc would furnish the nec- 
essary metallic cards for marking all the interior section and quarter-section corners 
in a township in the manner described above. 



PUBLIC LANDS. 487 

Testimony of H. T. Burgess, civil engineer and mineral surveyor, Salt Lake, Utali. 

Micajah T. Burgess, a civil engineer and mineral surveyor, resident at Salt Lake, 
testified September 7, 1879, as follows : 

Have been familiar for ten years with the practical operation of United States land 
laws relating to lode claims. The practice of permitting mineral surveys to overlap is 
objectionable, because tending to confusion and litigation. The making of such over- 
lapping surveys is, however, a necessary incident of the present system of location 
which permits of such original overlapping, and hence necessitates a similar conflict 
in the subsequent official surveys. So long as miners are permitted to make vague lo- 
cations, as at present, and to follow their lodes wherever they run, conflicts will occur. 

The common acceptation of the term apex is its highest point at any given place. 
The word presupposes a dip, and the highest point of a lode at any given place is hence 
its apex. This must be true in all cases where a lode has a dip, but there would be no 
a,pex to a horizontal lode. In case of dip there may be a series of points. In a verti- 
cal vein there would be a series of points also. 

In Utah it is rarely the custom, in the early workings of lode claims to endeavor to 
determine the apex or cross or angle of a lode or vein, and it wouid be very difficult to 
apply a rule for the ascertainment of either uniformly. While there are some cases 
where it is a very easy matter to determine the dip of a vein without doing much work, 
generally it is impossible to do so without going at least 100 feet in depth upon it. 

In view of the fact that under existing law the term apex, cross-angle, variation, 
&c, are essential parts of the law and in view of the further fact that the information 
necessary to determine the facts called for by these terms cannot generally be ascer- 
tained in the early location of a claim, in my judgment the rights of a locator are not 
sufficiently defined under the present law ; and in a majority of instances they cannot 
to a reasonable extent be protected under existing law. Eight here let me explain a 
little : The law seems to require that the locator of a lode marks his location on the 
.ground very soon after the- discovery, and the law allows the miners of a district to 
regulate the width of the surface ground within certain limits. Suppose the district 
law then requires that 100 feet in width shall be all that is allowed a locator and that 
very soon after making the discovery he stakes his boundaries. He is j ust as apt as 
not to get his location at right angles to his vein as to get it longitudinal to that vein. 
If he gets it at right angles he gets 100 feet of vein ; if fortunate enough to get it run 
right he gets 1,500 feet. In the former case under decisions in this Territory he would 
lose all but 100 feet of his vein. 

Since the passage of the act of 1866 or 1872 it is in my opinion impossible to deter- 
mine the apex, cross-angle, &c, at the time of locating a mine, and much litigation 
has grown out of that impossibility. 

I have known two seams running parallel or approximately so, being located by dif- 
ferent parties, resulting in contests. I think a case of that character was decided here 
in court yesterday, that of Stuart vs. Edison. (Witness here entered into a lengthy 
description of the geology of the country and the location of the veins in controversy 
not relevant to the matter under discussion.) Continuing the general testimony he 
had not known of any instances in which the first locator had been cut off by the sec- 
ond locator. 

Sometimes the outcrops of lodes are wider than the legal width of claims, whether 
as defined by United States or Territorial laws or local district regulations. This is so 
of the Flag Staff, South Star, and Little Cottonwood. 

Sometimes the outcrops of narrow lodes so deviate from a straight line as to pass 
beyond the side lines of claims. Of this the Ked Rover, in Bingham Canon, is an ex- 
ample ,* and I know of a good many instances where the vein deviates from the course 
of location so as to pass off the location, but it does not come back. The Red Rover 
seems to run off and then run back. Generally the difference that troubles is merely 
in the direction of location of the lode. 

In reply to a question whether it is practical, under the law, to secure the location 
of alleged lodes where mineral cannot be worked to advantage, but greatly to the dis- 
advantage of discoverers of true lodes, witness said : The question is correctly put as 
predicated upon a matter of general practice, although upon the requirements of local 
laws it is not. Local laws, as well as the United States mineral law, require that a 
man shall have discovered a lode, but they unfortunately leave the proof of discovery 
entirely to him, and as a matter of practice there is no restriction upon a man's taking 
tip a lode claim upon absolutely barren ground. He simply has to come in and file his 
application, and claim so and so. Whether he has found mineral or anything else 
there, rests in his own breast, and it is left to him to say whether he has or has not, 
and he is given a license. This state of things works very much to the disadvantage 
of the real discoverer of a lode and to the advantage of blackmailers who make loca- 
tions of something they allege to be veins, evidently for the purpose of getting money 
out of parties who think they have good mines. They simply make their locations for 
the purpose of acquiring fighting claims. In answer to No. 12 of questions relating to 



488 PUBLIC LANDS. 

lode claims, witness said a man could cloud the title of the true discoverer of a lode., 
and cause him an expensive litigation, but should not be permitted to do so. To 
show how this state of things might come about, and what difficulty the true discov- 
erer of a lode would be put to in order to determine the identity of the true lode, I will 
say that B would allege that he had ajaarallel vein to A's, and would sink down until 
he passed into A's vein. In many instances he would sink through country rock and 
allege he was sinking on his vein matter ; and finally, when he cut through into A's 
vein, he would begin to extract ore ; and A would be compelled to show that his point 
of discovery and drift was upon the vein when B had entered his vein, and then prove 
in court, by expert testimony, that the other party could show no ore extracted be- 
tween his alleged discovery and the point where he had entered on A's ore. This opera- 
tion would cloud the title of the true mine for many years, probably. Witness an- 
swered affirmatively to No. 13, lode questions. In the event of litigation, as a rule, it 
is mostly over that portion of the vein which has passed beyond the exterior lines of 
the surface ground of the claim ; but there are such variety of causes that there can 
be no rule stated. In the majority of cases, however, the contest undoubtedly results 
from the dip of the vein beyond the side lines — the plane lines. As a rule, and as a 
general thing, ore is taken out on the dip outside the plane line. 

I doubt very much if it is possible to retain in the mineral law any provision by 
which locators could follow the dip of their claims outside their side lines without 
provoking litigation. There are so many excuses for litigation, so many crooks in 
practical mining, that I doubt if it would be possible to do away with litigation, so 
long as you allow men to go beyond the plane of their sicle lines on the dip of the lode. 
Conceding that under the present law the right to follow the dip is provocative of 
litigation, I can think of no safeguards that would prevent such litigation, or even its 
excessive increase. 

Witness had never taken any part in organizing mining districts, and was only 
familiar with the mode of organizing them by description. As he understood it the 
question of citizenship need not necessarily enter into consideration informing a district. 
Prospectors often travel in groups of three and upward, and they have an understanding 
or a rule among themselves that three of them have the right to organize a district 
and pass laws. They wander over the country and find something they want to record, 
and they organize a meeting, with perhaps only three persons. One of them becomes 
chairman of the meeting, another secretary, and they will proceed to appoint commit- 
tees for the drafting of by-laws for the government of that district, and the committee 
will write out his notions of the boundaries of the district, and what the laws and reg- 
ulations for the government of mining in that district should be, and these are pre- 
sented to the meeting and adopted. Then one of the three is elected recorder, and in- 
structed to get books to record claims in, and business begins. There is no safeguard 
to prevent the overlapping of districts and consequent conflict of authority, except 
that arising from the knowledge of other districts those meeting together may possess, 
and it is a mere chance of their possessing any. They generally take natural objects 
for their boundaries. I believe the requirements as to number of persons qualified to 
organize a district is a matter of custom and not of law ; and it is only custom which 
requires that the organizers should be miners at all. The understanding seems to be 
that all prospectors are miners, and persons organizing a district are likewise assumed 
to be miners. I understand it to be true as a rule that districts are formed by small 
parties of prospectors, though sometimes they are organized by meetings of which 
notice had been previously given to miners, &c. In the absence of organization of a 
district, a man desiring to locate a claim would dig a hole and hold it with a pis-ol, 
and would be governed by the dimension of his claim in posting up his notice, though 
I'doubt if miners often post notices of their claims in the absence of a district organ- 
ization. I believe they generally follow the custom of the last district in which they 
worked. 

I have never known of any evidence of citizenship being required in the organiza- 
tion of these districts. I do not know of any law where citizenship is mentioned as a 
necessary qualification in those banding together to form a district. Such meetings 
generally elect a recorder, whose duty it is to keep a record of all claims that may be 
presented for record and to provide himself with books for that purpose, for which 
service he shall have a certain fee. Under the law he has to record a claim wheu it is 
filed for record. Sometimes the laws provide that he shall visit the claim after the 
notice is presented for record. That is not always done. As a matter of fact, the 
recorder records anything that is presented to him, for which the fee is paid. The 
object in keeping the book of record seems to be that there may be something per- 
petuated in writing to show that a party making a location has located the ground, 
and then the record is intended as a notice to other prospectors of that particular 
piece of land being occupied or claimed. There is generally provision made in the 
law that recorders shall keep their books open for inspection at all reasonable hours. 
What good it does I do not know ; but unless there was some provision many loca- 
tions might be made on top each other. A copy of that record of location, certified 



PUBLIC LANDS. 489 

by the mining recorder, is the foundation of the entire proceedings to acquire a min- 
eral patent from the United States, and is evidence in any legal proceedings that may 
be instituted concerning that claim. 

In answer to No. 16, questions on lode claims, witness stated that any man who 
wants to locate a piece of ground takes a piece of paper and writes a notice, perhaps 
the best he knows how, and takes it to the district recorder's office and files it with the 
record, paying $2, which is the fee in most cases ; and if that notice is found to be very 
imperfect, in some instances it is modified by the district recorder, at the request of 
the locator, so as to make it conforoa to what the district recorder believes to be the 
requirements of the act of Congress. Some district laws say the locator shall erect a 
monument and two stakes of a certain size, and I think some of them go so far as to 
say they shall do certain work, but as I understand it that is not the rule, and those 
forming districts now very generally insert a clause in their district laws adopting 
the United States law as the general guide, and only make rules for matters of details. 
The filing of the certificate or notice with the recorder is the main thing. The filing 
of the certificate does, I believe, hold the point of discovery against other parties until 
the locator leaves the ground, and then just as likely as not another party will make 
another location that will take in this point of discovery ; but so long as the original 
party is on the ground that notice is apt to be respected. That notice is the founda- 
tion of all subsequent proceedings relating to the title of the claim, and it is the first 
step toward obtaining a patent for the land. In the matter of any controversy re- 
specting boundaries, the controversy would also hinge upon that certificate, and I 
believe that the litigations necessarily occurring in relation to mineral titles are enor- 
mously increased by the illiterate or careless manner in which these locations are 
originally drawn. « 

I do not personally know if that record is capable of subsequent amendment (after 
it is filed), but have been informed by some district recorders that they would allow 
any record of location to be amended, if the party making the location should apply 
to clo so within a reasonable time ; and it is subject to amendment at any time by filing 
what is called an addendum notice or additional description of the ground. I have 
known that to be done in cases where the claim was several years old. The original 
notice is not necessarily touched or mutilated by this amendment. In many cases after 
the original notice of location is recorded the party wants to furnish the public with 
an additional description of the ground, and he files an amendment notice and that is 
also recorded and forms part of the record. No questions are asked as to the descrip- 
tion he files. 

In many mining districts I understand there are provisions in the laws which allow 
of their amendment under certain conditions on due notice, but I do not understand 
the modifications could interfere with acquired rights. 

Question. Suppose that all the miners in a district wish to change the size of their 
claims, would not it be competent (by a two -third vote) for them to come together and 
reach that result ? — Answer. That is an extreme case, and I have never known such a 
case as that. I have known of laws being repealed, but never of their repeal being- 
made retrospective. I cannot say it is within my knowledge that mining titles have 
been disturbed or eradicated through the fraudulent manipulation or destruction of 
mining records, though I have heard such things intimated. I do not think there is 
any security against such a practice, except the honor of the district recorder. The 
records are in his possession and he may manipulate them if he wants to. He is not 
under bonds nor under oath, and there is only the security of his personal integrity. 

In answer to question 19, lode claims, witness stated that in his opinion the initia- 
tion of record title to claims could be advantageously placed in the hands of federal 
land officers as regards general results, but that it would likely work a hardship to 
individual miners, because a considerable interval must then necessarity elapse be- 
tween the discovery of the claim and the recording of it. It would be necessary to 
have mineral discovered in a particular district, else there would be no federal officer 
present to make the record. It would be impossible to have a federal recorder in 
every mountain district of a mile or ten miles area, and in their absence prospectors 
would risk losing their claims, because they would have to notify the proper authori- 
ties that they had found mineral, and some one would have to be sent into the neigh- 
borhood to make a record of it, involving a delay often of weeks and months, when 
the man must be away from his claim hunting a federal recorder. As it is now, the 
districts are hardly ever larger than six miles square, and he need lose but little time 
in making his record— hardly ever more than a day— and hardly more than that inter- 
val elapses after the discovery of mineral before he seeks and obtains a record of his 
find. Among miners a record in a district office is much more generally respected 
than a notice posted on a claim. The fact that he has been to the district recorder's 
office and filed his claim for record is considered to give him a much better status 
than the mere posting of a notice. The result is that it would be a mere question of 
administration. Whether he filed with one man or another would not matter if he 
had the same facilities afforded him in either case, and it would be better for him to 



490 PUBLIC LANDS. 

file it with a United States officer than with an irresponsible recorder, if it could be 
done with the same speed ; but no system should be adopted that would increase the 
delay or difficulty in securing a record of a mining claim. 

As regards the inquiry whether requiring the record to be made with federal offi- 
cers would not lead to greater benefit to the greater number by giving them more 
security for a proper record and in that way do away with litigation, I hardly believe 
in the greatest good to the greatest number ; I believe in protecting the man who finds 
the mine, because without the discoverer we would not have mines at all. It is fre- 
quently stated that the professional prospectors do not derive benefit from their dis - 
coveries, but I have known a great many who have received a great many thousands 
of dollars for their rights of discovery. I think the present system loose and incom- 
plete, and would prefer another if it could be arrived at without oppressing the class 
of people who find mines; but I would not advocate a system that would leave them 
without a record of location even for a short time. Miners very often go great dis- 
tances from old districts, and it would be impossible to have a federal officer follow 
every group of two or three men wandering over the country in search of mineral. I 
think the system would be a judicious one generally, but I would not favor any sys- 
tem that would work oppressively to the prospecting classes. 

There is no limit to the present system to which the record of location runs, as I 
understand it. At the present time a man may hold a mining claim for a lifetime 
under a notice of location. As regards the perpetuation of that system, I think it 
would be good with some modification — i. e., that he hold the ground by a certain 
amount of work annually, and I would see to it that he actually did the work by a 
system of inspection by United States officers. The officer would not be required to 
be there until the district was populated to som^extent, and he would not necessarily 
be in a certain locality all the time. What I mean is, that I would want it to be the 
fact that at least the claimants in a mining district actually did work, instead of rep- 
resenting that they did, and I would secure knowledge of the actual facts by some sys- 
tem of inspection. I would not leave it to the miner to say whether he had. done the 
work, because in many instances claims are revived after they have been abandoned 
for years, for purposes of litigation. I do not think this theory of inspection would 
involve such a multiplicity of officers as to render it useless. It would not in this 
Territory. It would be a very easy matter to inspect the work of all the mines in 
Utah. 

Q. Have you any idea of the number of locations in Utah ? — A. I know what is said 
to be the number in Bingham. 

Q. How many ? — A. Five thousand five hundred. That represents about four square 
miles of territory. 

Q. Now, extending that in similar proportion A. That is an exceptional case. 

You might go many miles where you would not find any location at all. Applying 
that to all the mineral districts in Utah, I think it would be practicable to obtain the 
requisite number of officers to make the inspections proposed. There should be an 
officer appointed for each one of the mineral districts. I do not know how many dis- 
tricts there are — probably 40 or 45 now. There were 37 in 1873. 

Q. Then you would have in this one Territory 45 officers, to be paid for the mere in- 
spection of mines developed. If that system were followed in each of the other States 
and Territories, would you not have a machinery that would render it impracticable? — 
A. I think not. I do not consider the question of expense should enter into this mat- 
ter where the government is to pay for it. It is like the system of surveys ; it is only 
impracticable because Congress will consider the matter of expense. 

When I spoke of some modification in the present system of protecting prospectors' 
rights I had in mind an amendment to the mining laws, making known explicitly 
what the government requires in the matter of location, and not leaving it a matter 
of judicial construction ; to make it perfectly plain to any man who engages in min- 
ing, and require him to strictly comply with it in making his locations, and have defi- 
nite instructions published as to the manner of marking claims on the ground and as 
to the method of describing them, a neglect of which i ules should work a forfeiture 
of his claim, which forfeiture should be determined by some officer appointed for the 
purpose. That duty might be imposed upon the mining inspectors. 

Q. Suppose that officer decided that the location was not valid, iuasmuch as the re- 
corder is not a United States officer, what jurisdiction would the inspector have to 
take that record off his books ?— A. It would not make any difference as long as the 
record was pronounced insufficient. 

I am not elaborating a system for adoption, but am simply giving my idea of the 
best method of modifying the law. The act of 1872 requires that the location shall 
be so distinctly marked on the ground that its boundaries can be readily traced. No 
prospector knows what that means. Some construe it one way and some another. 
That is the fault of the law. 

I am in favor of the repeal of the present mining laws and the substitution of another 
that would require the rectangular subdivision of the mineral lands of the country, 



PUBLIC LANDS. 401 

and T would have this rectangular subdivision to be of ten acres, in squares, and I 
would allow each prospector to locate from one to four of these squares, and I would 
have the plane of the side lines of this rectangular subdivision limit his right to the 
vein contaiDed. The area of a mining claim made in one location of 40 acres would 
be 1,320 feet square. That, I think, would come as near doing away with litigation 
in connection with mining claims as anything I could think of. I repeat, I would 
allow a miner to take one to four of these locations, at his option, and for convenience 
in surveying I would make the locations in squares — not to include more than 40 acres 
of ground. The limit would be one- quarter the size of a quarter section of land, and 
the smallest quantity would be the smallest legal subdivision of land. 

Such subdivisions as that above suggested would cut off the vein on the dip, the 
depth depending on the angle at which the vein dips. No two veins are alike. They 
run at different angles. If the apex of the vein was absolutely at one side of the 
location, and it went down at an angle of 45° from the horizontal, the depth on the 
dip would end at the square root of the sum of the squares of the two sides. With- 
out figuring I cannot say exactly what it would be. Approximately, if the apex of 
the vein and one of the sides of this 40- acre tract coincided, and the dip is 45°, you 
can follow the dip of that vein 1,863 feet without going outside the tract, and under 
one location that would be the extent to which deep mining could be carried. If the 
vein pitched steeper you could of course go deeper, and if the pitch was not 45°, less. 
It is very seldom in this country that a vein has a less pitch than 30°. Presuming the 
apex to be at one side of the location, under the worst circumstances you would have 
1,320 feet depth. I do not think such a restriction would give the death-blow to deep 
mining. The cases are so rare where any one goes down 1,800 feet on a vein that it is 
hardly worth naming. In this country, at least, it is very rare. The Comstock might 
be named as a noted exception. I am satisfied there is not a mine in Utah, Idaho, 
Montana, and Wyoming that is 1,800 feet in depth. I do not think that a system that 
would allow 1,800 feet and upwards on every vein, would interfere materially with 
the development of deep mining or defeat the investment of sufficient money to make 
it profitable in this country. If a mine is worked 1,000 or 1,200 feet its owners can 
form a very correct idea of what their vein is going to be for the next thousand feet, 
and then it would become their duty to purchase more land. They might make a sec- 
ond location to protect their dip. I am disposed to allow a man to have all the min- 
ing land he will work. I would give him more land to protect his work than under 
other circumstances. Even though you allow a man to make an immense location you 
cannot require him to do more work on it than he pleases. The chances are he will 
not utilize his own land and will not allow others to do it. 

I consider mining at 1,800 feet tolerably deep mining, and I hardly think restricting 
a man to so much laud as would allow him to go that deep would interfere with deep 
mining to such an extent as to retard its development or prevent the investment of 
capital in it. 

As a matter of general policy I think that there should be a limitation as to the 
possessory title in mineral matters, so as to require them to perfect title within a 
reasonable time. 

The law in relation to tunnel locations is a dead letter any way, and in the event 
of the adoption of my side-line suggestion it must necessarily be repealed. It might 
as well be repealed any way, for they have never struck any veins in the tunnels in 
this country. I do not know of the discovery of any such vein. I have heard rumors 
that such veins have been struck, but they have not been authenticated so far as I 
know. The only good tunnels do, they sometimes drain and assist in the working of 
mines. I do not know whether or not there have been any decisions by the courts in 
this Territory as to the rights of parties under tunnel locations. 

In regard to mill- sites, I might say that mills are erected for several purposes ; some- 
times for the purpose of controlling the stream of water, and at other times for the 
purpose of putting mills up for the use of mines. Sometimes they are erected for the 
use of smelters or mills, and sometimes for speculation. 

Within my knowledge the purposes intended by the law are not carried out in the 
location of mill-sites in any considerable number of instances. As regards the con- 
tinuation of the mill-site privilege,jl do not know that there is any real good, nor gen- 
erally any great harm, in the law. If a man wants to put up a mill he can generally 
find a place to put it on without a mill-site. As I understand it, the law requires that 
land taken up as a mill-site shall be non-mineral and non-adjacent to the end of a 
mining claim. If not amended, the law should be enforced. 



492 PUBLIC LANDS. 

Testimony of L. S. Burnliam, Bountiful, Utah. 

L. S. Burnham, of Bountiful, Utah, testified at Salt Lake City, September 15, 1879, 
as follows : 

The suggestions I have to make are simply on agriculture. There are many little 
evils we have to encounter here under the public-land system that are not known in 
other countries I have lived in. 

I am a Mormon, but not a polygamist. I have for twenty- five years been acquainted 
with this community system. The system of disposal of our agricultural-land rights 
here has been entirely different from the one prescribed by United States laws, as I was 
familiar with them from having been twelve years in the business before I came here. 

For many years we were not permitted to make any land claims except with the con- 
sent of the church. We could not take lands under the United States system up to 
the time the railroad got in here. The lawyers came in here, and a multitude of 
fraudulent claims have been the consequence, since the United States land office was 
established here. Everything broke loose then. The people could come in then and 
make filings according to law. Since the land office was opened, in 1869, an immense 
number of fraudulent filings have been made, and have led to an immense amount of 
litigation and mischief to the people. In more than one instance there has been a 
strong effort made to carry out some filing, especially on the part of the church. 

Twenty-five years ago I wanted to take a piece of land here in Utah. I went and 
selected a piece and told the bishop that I wanted to go on to a piece of government land. 
He said, " I shall not allow you to go on to it." I said, "What is the matter?" and 
he replied, "You won't be permitted to touch it." They gave me no other reasons, only 
that. Then I tried another piece, but I met the same answer, until I learned that it 
was the ruling and custom here not to allow any person to take up a piece of land 
except by the bishop's sanction, and then it was advisable to take only from 10 to 20 
acres. 

Sometimes individuals who were favorites could go and take out other pieces of land ; 
it depended on a man's standing in the church. When the land office was established 
a multitude of filings were proved in the end to be simply forms to prevent anybody 
going on to the land thus covered. A great part of them were homestead filings. The 
records of the office will show it. We found it necessary, in order to enter any kind of 
claims for homes for onrselves or pieces of ground, frequently to go outside of all that 
was called decent land. These old filings had become obsolete, for the parties never 
have been on them, making declarations in some way, and whenever there was an op- 
portunity offered to take them we had to go through the forms of law or else hire them 
cancelled, although the time had expired. To hire them to send for the cancellation 
papers was the cheaper way. There was a multiplicity of fraudulent claims held over 
the whole country to keep the Gentiles from taking part of the land. We found that 
we could only accomplish that sometimes, for while waiting for return of cancellation 
papers from Washington to this office, which is the law, parties would come just in 
ahead of us and whip us out of it. 

The first suggestion I had to make was that it seems as if the one who had obtained 
the cancellation of such old fraudulent claims was in possessory right, and ought to 
have a few days given him, if it is not more than two. 

I think the local offices here should be permitted to manage the whole matter. The 
little humble farmer, who has only a few hundred dollars, and has to reach this thing 
inch by inch, it ruins him. I am on a desert-land filing. I had obtained the cancella- 
tion of a quarter section of land that was an old fraudulent filing. It cost me $35 to 
get that canceled. I sent it to Washington and it was returned. I had my attorney em- 
ployed here, as I cannot be here all the time, to manage it for me. I had the money 
deposited at Walker's bank, subject to the orders of the attorney, but as soon as the 
papers came in, canceled, another party came in and gobbled it, and they probably 
got a letter from Washington about it.' 

If the officers here had the authority to make the cancellation, upon the proof that 
I had filed, I would have been protected. I would have saved my money, and obtained 
my land. The individual that heard of this filing and'stepped in ahead of me made a 
desert filing and took it up, I think some years ago or more. He has made no use of 
the land at all ; I have since been over there ; he is a member of the Morman Church, 
but of course I cannot charge it to the Church. 

I came here from Vermont because I believed in the principles of the Mormon church, 
and that it would make me a better man, but the practice and professions of the 
church do not agree ; I am a Mormon but not a polygamist. 

I have a wild suggestion to make, and it is this: In consideration of extreme diffi- 
culties laid antagonisms, mostly by foreigners who now inhabit Utah, and the ex- 
treme prejudico on account of the teachings of the church against the economy of the 
government of the United States, in her method of disposing of the public lands, I 
would suggest that there be a commissioner over a certain number of land offices, 
who would bring up all land matters, and adjust and settle them, without the long 



PUBLIC LANDS. 493 

course of litigation that now exists in Utah. I have studied this matter for years and 
such a commission with appropriate legal authority would end a host of trouble for 
the poor farmers. The commissioner not to receive fees, but a salary ; thus guard- 
ing him against anything like bribery. If it could have been so in years past it 
would have saved a terrible sight of feeling and prejudice which has been created 
against the government. 

I am opposed to any pasturage system, and to the giving of 3,000 or any large num- 
ber of acres to any one. My reasons are, that these dried-up and burnt lands are sus- 
ceptible of becoming very valuable lands by boring artesion wells. I have tested it. 
I am at it now, and the result, as far as I have carried it (and it is only the begin- 
ning), has been a great deal more favorable than we expected. I am 9 miles north 
from Salt Lake City. I will give you my theory. As dry as it is — and it is the driest 
we have ever known it here — it has dried up millions of bushels of grain, still we 
bore down 10 feet with my little auger (which is my own invention) and we strike 
water. It is only a few miles from Salt Lake City, but we find it is not the seepage 
from the lake. We find that it is the gradual underflow from the mountains^ It is 
fresh water ; therefore it comes from the hills. It is fresh water and does not come 
from the lake. Salt Lake never seeps back. The water from the hills is forever 
crowding towards Salt Lake. In testing the matter we found this to be true. In 
boring 10 feet we struck water ; in boring 50 feet we got enough water to run off a 
little stream. Forty-five feet would, perhaps, just make it stand level at the top. 
The formation we bore through is simply stratified clay ; it is a mud deposit in the 
water. It is a stratified, regular formation, as if it had been deposited just so much 
each year, and as we pass through there is a little quicksand between two stratas, 
and in that quicksand there is a little water. Below that you reach another strata, 
and getting lower, you reach another. That is the theory we work on, and we find 
that it is the correct one. The theory appears proven as far as we have gone. We 
think we can get a flow after awhile. This will redeem these lands. 

Another thing I wish to state : we have a worse enemy to encounter than the drought, 
and that is the terrible alkali beds. It takes science somewhat to master that. The 
alkali beds, so far as my knowledge and experience goes, cover almost all the desert 
lands in Utah. The waters contain a greater percentage of saline matter than they 
do on the other side of the range. Our waters carry from 7 to 10 per cent., and on the 
other side of the mountains they carry from 4 to 6 per cent. The alkali seems to be 
almcst entirely on the top. It consists of all varieties of saline waters. There are 
more than fifty varieties of it. The fresh water, forever working towards the lake, 
becoming permeated through and through, is always carrying this saline matter, which is 
low down in the earth, right into Salt Lake. Onthetop it (the water) isneverso strongly 
impregnated. When Salt Lake receded it left a great deal of saline matter near the 
surface. It impregnated the soil so strongly that we had years of trouble before we 
were able to raise cabbage ; but when we do get it, it is the richest land in the world. 
The most effectual method of getting rid of it is the niter, which in rain and snow neutral- 
izes it. It is better for it than anything we have ever tried. It seems to neutralize it 
without running off. Then we use the spring floods in the mountains. We wash it a 
a great deal that way. We wash the soil when the spring freshets result from the 
melting of the snow. That is one of the best ways we have of removing it from the 
soil. You see now why I am opposed to the pasturage homestead, for I think these 
lands can be utilized for agricultural purposes. The pasturage homestead law will 
have a tendency to monopoly. A man would take up a thousand acres of land in this 
way, and would be likely to let it lie idle for many years. If a man had 1,000 acres 
he would not do anything with it. 

Under the present method we take five acres and subdue it, and next year we take 
another five acres. I could not take a thousand acres or a hundred acres and do any- 
thing with it. We farm about 91 acres of land. The church used to pester me, but 
they do not bother me now. I made an effort to take this land fifteen years ago, but 
they would not let me. President Brigham Young spent more than $200,000 of the 
church money redeeming that land, and it has failed since he died, and they aban- 
doned it. We have not been allowed to file on it. They proposed to bring the water of 
the Jordan and Weber Rivers on to it, but they failed. 

Another thing that I would suggest, that would do away with much of the diffi- 
culties surrounding the land question and bring the greatest amount of prosperity, is, 
that a commission be appointed to settle all these Mormon land titles. It would de- 
feat every kind and character of foreign and domestic prejudice as to the economy of 
the system of the United States land laws. 



494 PUBLIC LANDS. 

Testimony of John Ward Christian, attorney-at-law, Beaver City. Utah. 

Beaver City, Utah, September 22, 1879. 
To the Public Land Commission : 

Gentlemen : Iu answer to your interrogatories, I am unable to respond to all at 
once, but will now answer to your first ten general interrogatories, and will answer to 
those under the heads of agriculture, timber, lode claims, and placer claims hereafter, 
as my time will permit. 

1. John Ward Christian ; Beaver City, Utah ; attorney-at-law. 

2. Twenty-one years. 

3. Have not. 

4. Assisting various parties in procuring their laDd titles. 

5. Homestead and pre-emption entries; usually from six to twelve months after 
making final proof. The expense depends usually upon the distance of the applicants 
and witnesses from the local land office. Places for making final proof should be in- 
creased and rendered more convenient to parties In contested cases, no definite time 
can be stated. In the case of Ashworth vs. Buckner (from this county), the contest 
lasted three or four years ; the expense, including attorneys' fees, about $3,000 each. 
Since Ashworth draw out of the contest, Beaver City has taken up the matter of con- 
testing Buckner's right to the same land and it is now pending in the land office. This 
land is worth about $2.50 per acre. 

6. I have. One defect is in allowing more than one person to file a pre-emption 
entry upon the same tract. Another is in allowing parties to change from one entry 
to another ; another is in allowing parties to abandon one entry or any number of en- 
tries, and make others. But one entry or filing should be allowed, and the party for- 
ever barred from making others, even if not perfected. This would limit contests and 
prevent speculative attempts. 

7. In answer to this interrogatory, I will have to confine myself to this county 
(Beaver), owing to want of time and opportunity. The east boundary of this county 
is the summit of the Wasatch range of mountains. The west line is the east boundary 
of the State of Nevada. To the westward of the Wasatch it is a succession of small val- 
leys (some fertile and some desert) and alternating hills and mountains, and high and 
barren table and bench lands, with but few streams and watering places other than the 
Beaver River and its three or four tributaries, to wit, North, Indian, and South Creeks, 
neither of which approach the Beaver during the latter summer months. The Beaver 
and tributaries all emerge from the western slope of the Wasatch — are flush during 
spring and early summer, owing to melting snows; but ordinarily during the irriga- 
tion season all of the waters of these streams are appropriated within a distance of 
25 miles west from Beaver City and within 35 of their sources, the final appropriation 
of these waters being at the town of Minersville, 20 miles west of this place. The 
benches, foot-hills, and mountains west of Wasatch are, or have been to a great extent, 
covered with a species of scrubby cedar and pinon pine, fit only for fire- wood and for 
a character of fencing termed in the West " bull fence," built of stakes thrown across 
and riaers thrown between, and vulgarly termed " rip-gut fence." These benches are 
very generally covered with " bunch-grass," except during dry seasons or seasons when 
the snowfall is light in the valleys and upon the benches west of Wasatch. The val- 
veys near the streams are usually covered with a low underbrush called sage, rabbit, 
and grease brush, and in very damp places willow brush, with but little grass only upon 
low places where water overflows during the early part of spring seasons. All these 
valleys are in fact desert lands, or were twenty years ago, but when reclaimed by the 
application of water make good grain, hay, and pasture lands. The scarcity of the 
water is the great drawback, as the more valuable lands are not so situate as to admit 
of being irrigated. 

The future of this county, and Southern Utah I may say, lies in its great mineral 
wealth, which is now being somewhat developed. The farm and garden products are 
not sufficient for the home consumption. As a pastoral district, our great trouble is lack 
of water at places where the best stock and sheep ranges or districts are. The great 
scarcity is during the summer and fall. After snowfall stock follow up the snow- 
line upon the mountains and subsist upon the snow. 

The chief and in fact almost the only source for building and fencing timber is 
the Wasatch Mountains, which have heretofore afforded all that has been used, with 
but little exception. Its supply of saw timber is now very limited on the west side, 
yet there is plenty of small cabin and fencing timber, &c, but very difficult of ap- 
proach. 

8. As to the best method of disposing of the public lands now unappropriated in 
this county and in all other districts similarly situated, outside of those upon which 
cereals and hay can be grown, is to sell them to parties wishing to purchase, in such 
quantities as they may desire, at the government price, upon application direct to the 
Land Department. If they are not thus disposed of, the mining interests of Southern 
Utah will soon consume all of the scrubby cedar and pine forests for charcoal, which 



PUBLIC LANDS. 495 

is very extensively used in smelting ores; and these growths are. from my observa- 
tion, not restored by new growths ; otherwise these forests will become vast unma- 
tured commons, and unsalable. A strict stum page law — i. e., so much per ton of coals — 
collectible from the consumers (the deliverers are too numerous to reach) might answer. 

9. I know of no better system than the one adopted by the United States. 

10. In those portions of the West situate as this and other Territories are, so far as 
my acquaintance goes, and especially this, Nevada, and Idaho Territories, and most of 
Arizona, where parties taking up farm lands have to procure their building and saw 
timber from the high mountains (their farms being low in the valleys), I would sug- 
gest that they be allowed to take, say, 100 acres in the valley and 80 up in the mountains 
among the timber, and thus parceling out the timber and thereby giving individuals 
power to protect it from merciless speculators in lumber, mining timbers, and railroad 
ties, and from fire, &c, thus throwing vast personal interests together, and thereby 
protect the general interest of the whole republic. Owing to a lack of some such 
arrangement, millions of feet of lumber have been cut and shipped from the western 
slope of the Wasacth in this county, during the last ten years, to Nevada and other 
places; and this mountain range is our only hope in future for all our mining and build- 
ing materials, for supplying our mining and agricultural interest to its west — and west 
of this range are nearly all of our principal mining camps in Southern Utah. 

Respectfully, &c, 

JNO. WARD CHRISTIAN. 



Testimony of Daniel Davidson, sheep raise)', Salt Lake City, Utah. 

Daniel Davidson, of Salt Lake City, testified, September 17, 1879, as follows: 
I am a sheep raiser. My sheep ranche is on White River. I have about 29,000 sheep. 
I think five sheep will equal one beef. I think it would take 30 acres to graze five sheep. 
The country where I am is very mountainous. There has been plenty of water, but it 
is scarce now. I range over a space twenty miles long by four miles wide in the summer, 
and in the winter I go to another place, having about the same area. Two ranges are 
indispensable. In summer I drive up into the mountains, and in winter I drive down 
into the deserts. I do not own the land I range on because I cannot afford to pay the 
government price. It is unsurvey ed land. I could materially increase the value of my 
flock if the land could be fenced in some way. The advantage would be I could move 
from place to place and keep others off. Then I could herd, and put in tame grasses, 
and make improvements generally. This land is not worth anything but for grazing 
purposes. I have great trouble to prevent people from causing their cattle to eat off 
the range. Sheep and cattle do not do well together, for the reason that the sheep 
nips the grass much closer to the ground than cattle do and eat the grass all off so 
that the cattle cannot get any. The idea that cattle will not graze on the same ground 
that sheep have grazed over is not true. I have seen in the east where sheep and cat- 
tle will do very well together if the pasturage is not overstocked. Where they are 
overstocked the sheep will take the grass all away from the cattle. Sheep will graze 
on the mountains where cattle will not. The ranges are steadily decreasing under this 
present system, but if I could own the land I could make the pasturage increase. I 
would then have an interest in making it increase. Last summer I went to work and 
fenced in a piece of grass. I should think about 230 acres. That is all the land I have 
fenced. I thought I was safe ; that others would not come in ; but other men came 
along and let down the bars and put their stock in my inclosure. They had just as 
much right to it as I had. If I owned the land I could then keep it up and improve it. 
There is some conflict between the cattle and sheep men. The herds will run from 
2,000 up to 16,000 ; mine is the largest herd. All the other herds in the Territory are 
about 8,000. They run in bands of about 2,500. 

I think these lands should be sold. I think it would be to the advantage of the 
government and the people if they were sold. It would, I am sure, be better for all 
parties. I would sell them at a nominal price — at 10 cents per acre. There are thou- 
ands of acres that are not worth much for anything. The stock-water privileges are 
pretty well taken up. It (the water) is stocked about as well as it can be. I think I 
would sell the pasturage lands in unlimited quantities. I think the pasturage-home- 
stead idea is a very good one. I think whatever is done should be done at once. It 
would be a great deal better for all parties concerned, better for the government and 
for the people. The government is getting no revenue from these lands, and the peo- 
ple are getting in all the time and getting the benefit of them. They take the timber 
off these lands and use it, and the government draws no revenue from them. 

Sheep pay better than cattle. I have been in the business twenty- five years. Sheep 
will pay 60 per cent. I have made as high as 80 per cent, a year. Cattle will not pay 
more than 40 per cent. My shearing from 18,000 sheep nets $24,708. I raised from 
them 9,400 lambs. They are worth from $1.50 to $2 per head. The wool sells for 20 



496 PUBLIC LANDS. 

cents a pound. When I came here in 1871 they had the poorest sheep here I ever saw. 
They were the Mexican sheep. I went to Canada and bought some large English sheep 
and brought them here. Brigham Young sent one of his bishops down to see them 
(in 1872), and the next morning a letter came from his secretary for me to come to the 
office ; and he said he had been down along with the bishop to look at my lambs ; and 
he said, " They are going to be a great acquisition to this Territory." I told him that 
was what they wanted to improve the stock, and he said, "Don't you want to sell 
them?" I would not part with them to any man, but he insisted that I should sell 
them. I said that if I did I would have to go back to-morrow morning for more, and 
he told me to go on and get more from Canada ; and he said, " I will sell the sheep for 
you." I went back the next morning to Canada, and I had not been there two days 
when a man by the name of Van Atten came there. I bought two car-loads ; he bought 
three. I got a dispatch from my wife saying .that none of the sheep were sold and 
that I had not better buy but one-half a car-load. I came home. They had not sold 
the sheep, and they never tried to ; they did not want to. They thought it would 
cripple me by making me buy so many sheep. The man told me that he and Brigham 
Young were in partnership. They wanted to keep me out of the business. I breeded 
from them two years, and then sent to Ohio and bought merino sheep, and have been 
using them ever since. The sheep here all have the scab, and it is ten times as bad as 
in the States. I use tobacco and sulphur ; ten parts of tobacco juice and five of sul- 
phur. I use them every year, scab or no scab. You cannot sell scabby wool. I em- 
ploy twelve herders and pay them $30 a month. It costs me $18 apiece to- feed them. 
This is not an agricultural country; it is a pastoral and mineral country. The only 
disease the sheep have here is scab. The alkali here cures the hoof-rot. 



Salt Lake City, September 11, 1879. 

John B. Milner, of Provo, Utah County, Utah, made the following statement : 

I am a farmer ; I have been a farmer in Utah for twenty- five years. I live in Provo, 
Utah County, which is an agricultural county ; I have lived there for twenty-five years. 
I own a tract of land, on which I live. I have myself personally attended to its culti- 
vation, though I am now a practicing attorney. For several years I was county sur- 
veyor of that county. The corner posts having been lost, I had to resort to the records 
of the county survey, because the survey had been made some thirteen years and the 
stakes were mostly gone, having been of the softest white pine when put in, and in 
all but gravelly soil the mounds that were originally erected had by natural causes 
become level with the surface. I was not able to find in the entire county three stakes 
in place. Where the rock or gravel mounds were constructed I was usually able to 
find the mounds. These gravel or rock mounds were erected wherever the soil was 
gravelly. There were very few of them, only at the base of mountains. About one- 
eighth or one-tenth of the whole were gravelly mounds. The whole of Provo Valley 
was surveyed, being not more than twenty- five townships, and my observation was 
confined to these twenty-five townships. That is all there was in the county. 

I am somewhat familiar with the requirements of the government surveys under 
the law. The monuments and stakes I found were not in accordance with the law at 
the time I found them. In only one instance was this the case, although I believe in 
most instances the stakes had been put down and the mounds erected. The soil of the 
arid land is impregnated with alkali, and the winter snows tend to make the land 
boggy, so that the stakes sink right down and disappear. I think rock monuments 
would be infinitely better. Eocks would not dissolve and rot as the gravel and stakes 
did. Alkali has the tendency to make them do so. I think the present system of 
rock monuments is the best. These rock monuments are now being planted regularly 
by the deputy surveyors. My present knowledge is somewhat limited, but there have 
been some resurveys made, and I have observed that the monuments have been 
planted in compliance with the law. 

I do not concur in the general opinion that the original survey was a very bad one. 
It wasn't correct, it wasn't on the true meridian, nor did they use the true length of 
chain, but considering the circumstances I think it was a very fair survey. I am sat- 
isfied that the surveyors did not comply with the rules in correcting their chain at 
prescribed periods. And in not using the solar instrument they didn't get the true 
meridian to about 40 minutes. Utah County is not on the true meridian to about 40 
minutes. The chain was too long. It not being on the true meridian at first, it was 
very difficult to replace it. 

I think a correct survey can be made by using the solar instrument. Precise accu- 
racy is not, of course, possible, but reasonable accuracy can be attained. The survey 
can be made within much less than the legal closing links. The legal closing links 
are, I think, 75 links to the mile. That is my recollection. The original survey was 



PUBLIC LANDS. 497 

in some cases scarcely within these limits. It can be done closer than that. I think 
generally that the rectangular system of surveying is not adapted to the surveys now 
to be made in this Territory, and in fact throughout the Rocky Mountains. All the 
valleys are mostly surveyed and the remaining unsurveyed land is now mosily in 
canons or very small valleys. A rectangular survey through the canons, chaining the 
exteriors of townships, is impractible and very expensive, and must necessarily be in- 
correct. It is impractible to carry such surveys through these mountains or valleys. 
I would triangulate them. There is much of this land that seems to be useless. It 
would seem to me that the system of authorizing irregular surveys would be well — 
that is, not on true lines — and possibly as to the quantity to be surveyed ; the survey 
to be made at the expense of the parties desiring the land, and the paying of the ex- 
penses entitle the person to entry, and to be the only prerequisite to owning unsur- 
veyed land. In compliance with other provisions of such a statute, if the survey 
was authorized to be irregular, it might meet the object both for mineral and also 
for those small irregular tracts of land for agricultural purposes in the canons and 
other places. 

I would take the liberty to suggest that a change in the land laws in relation to 
timber seems to be almost a necessity. Merely as a citizen I believe the government 
is under moral obligations, and possibly a legal one, to allow the citizens who have 
settled upon these lands in good faith to cut timber from the lands of the government 
for fencing and domestic purposes. There should be a law that would entitle them 
to do this. During the time that they are acquiring their title, there should be some 
method whereby those who have settled upon this land should have an opportunity 
to get their timber for domestic purposes in some manner. I do not mean for purposes 
of commerce. Possibly this timber land might be surveyed and communities per- 
mitted to enter a portion of the land on which the scraggy timber grows suitable for 
fencing and fuel. Perhaps it would be as well to permit the local legislature to enter 
this timber land in trust *for and in behalf of the community, the legislature deter- 
mining the method of disposing of the trust. If farmers were permitted to enter 
timber land for domestic purposes, that would tend to the benefit of the community. 
It would permit citizens to obtain timber without violating the law. 

Question. Why limit your right of entry to communities ? — Answer. I would not 
limit it to communities. 

Q. Why provide for a community entry at all?— A. I would object to the timber 
lands being open to general entry, because it might create a monopoly. I would sug- 
gest this, too : That each and every owner of a mine should be permitted to enter so 
much timber land. Every person who has acquired title to a portion of government 
land for agricultural purposes ought to be permitted to enter a portion of timber land; 
and in each town and village some person should be permitted to enter in proportion 
to its inhabitants and in trust for them a certain amount of timber land, that they 
might get fuel and timber for fencing purposes for the use of the town. 

Q. Why should that community be allowed to take the timber land ? — A. It is im- 
possible for a community to exist on land entirely barren of timber. My objection to 
private entry is that it would be embarrassing for the government. The difficulty is, 
that the amount of timber in this territory is very limited, and the lands as held by 
our people are held in very small quantities. If there was sufficient timber it might 
be well to open it to private entry, but I do not think there is enough timber to give 
every man in the Territory of Utah within 100 miles of the settlement 10 acres of 
timber ; that is, every man that is the head of a family, and every man over the age 
of 21. My idea is, that as people live in communities and hold small tracts, say 5 or 10 
acres, they should have a small amount of timber corresponding to their small tract 
of land, and the whole community will not want more than 160 acres. If agricultur- 
ists and miners were permitted to purchase at all, there would not bo sufficient for 
them all, and it would be necessary in a few years to plant timber in the valleys. I 
am perfectly willing that it should be given to each individual citizen, and I should 
prefer this, if it can be done. 

Q. What is the head of a family here? — A. The head of the family is the man ; the 
different wives are not the heads of the family. It is possible that there are widows 
who are heads of families, and there are polygamous wives who are heads of families, 
but there are very few of them. 

Q. What are the number of heads of families in the Territory ? — A. I would estimate 
the number of heads of families at 15,000 or 20,000 in this Territory. In the community 
system of entries it would resul t in distributing the timber land among the population, 
even if a certain amount was given to each wife as the head of a family. 

Q. Why would it not be a more satisfactory way to simply sell the timber land 
to whatever individuals wanted to buy it ? — A. I think that in consequence of the 
fact that the timber is so limited in the vicinity of the improved lands of the Terri- 
tory, it would create a great monopoly that would be detrimental to the actual settlers, 
as he might not get any of it ; the settlers would then be at the mercy of the land 
grabbers. I think a man should be permitted to take the timber land in proportion to 

32 L C 



498 PUBLIC LANDS. 

the amount of agricultural land or mineral land he had, and the size of his family. 
My position is this, that if the government has sold me 160 acres of agricultural land 
I should be permitted to have a proportion of timber land with my 160 acres of agri- 
cultural land if I have acquired a lot in the city or town, and should be permitted to 
acquire timber in proportion to the area of the town property as a basis. 

Q. Would it not create a monopoly by giving a man a tract of timber land for each 
of fifteen mines if he had so many ? — A. I readily admit that the system I suggested 
may be abused and may tend in a degree to create a monopoly, but I think it is the 
least of the two evils. My suggestion is to distribute it to the" actual settlers in pro- 
portion to the area of land they have ; I think they ought to be entitled to a portion 
of the timber land to be entered iu trust for them. All I want is to have the persons 
who are now on the land to have the timber for their wants only. 

Q. What is your idea of the price for this timber land ? — A. I have no opinion upon 
that question ; if it was real timber land the price should be higher than agricultural land. 
There are large areas of land that possibly might not be called timber land that par- 
ties would be pleased to get title to where the scrubby cedars grow ; it is valuable for 
mining purposes and for domestic uses, but no person could afford to pay much more 
than the price of agricultural land for it. The great difficulty is that you can seldom 
find a large body of timber together ; it is in groves in the ravines, with large inter- 
vening spaces of bare barren rocks, with nothing whatever growing upon it, so that 
the majority of the timber land in Utah will not be worth more than agricultural land. 
Besides juniper, there is some pines (mountain pines), cottonwood, quaking aspens, and 
box-elder. We have no hard wood ; one would hardly be worth more than another. 
I think a uniform price would be just ; the price of agricultural land would be a good 
price for this timber land, for the land is worth nothing after the timber is cleared off. 
This timber sells generally at an average of $6 per cord. Much of this timber is brought 
a long distance ; I have hauled timber ten miles. Where the timber grows you can 
get on an average $10 per acre. 

Q. Do you know anything about the average cost of delivering it at market ? — A. 
It will cost all it sells for. A person will only get the cost of his labor and hire of his 
team. If he had to hire his team to haul it with he would not make a cent. I know 
of no person in the Territory who makes it a regular business. Farmers engage in it 
at odd times. 

Q. Is not in your opinion the destruction of the forests attributable more to fires 
than it is to the depredations of individuals ? — A. Yes, sir. There has been more timber 
destroyed in my county by fires in the past month than the inhabitants would take 
out in a series of years ; say four or five years. 

Q. How are these fires started ? — A. The fires generally originate through the care- 
lessness of the persons hauling timber, through the lighting of camp-fires, or by hunt- 
ers and Indians for the purpose of driving the game. 

Q. Do you know of any legislation that could be enacted by which the starting of 
these fires could be prevented ? — A. I do not. Ownership of a tract would to a very 
considerable extent. The creation of an interest would tend to its preservation. 

Q. Could this subject of the destruction of timber be better taken care of if it was 
tinder the jurisdiction of the district land office? — A. Yes; I think it could. 

Q. Can you state in a general way what the exact law is relating to water rights ? 
*— A. Practically there is none. It is usage ; and the difficulty is, usage is not uniform ; 
hence it does not become a custom. There are some general features that are com- 
mon. The act of Congress providing that the prior claimants are entitled to the water 
is very generally recognized. 

Q. What is your system of irrigating here ? — A. The system of irrigating on a large 
scale is this: a number of persons will agree together that a certain tract of land is 
susceptible of irrigation from a certain stream ; they will get an engineer to locate a 
canal from the main stream to this tract of land on the most feasible route ; they will 
then come together, and under some mutual agreement construct a canal, and then 
will distribute the water under any arrangement that they may make, in proportion 
to the amount of labor that each man has done upon the canal, and will cultivate 
their land in proportion to the amount of water to which they are entitled. In a 
number of cases they are incorporated. In some cases the distribution of water is 
conducted by water-masters. In every case it is managed by committees elected by 
those men who build the canal. There is some man under their control who virtually 
distributes the water, and who determines the amount he shall distribute to each per- 
son. The whole matter is too much by common consent and not enough by rule. I 
have two cases that I have got to try next week, wherein I design to make it a point 
in the district court that a personal distribution of water by water-masters, even 
though he may under the statute be an officer, is not such a distribution as can be en- 
forced. I do not know whether I will succeed in making that point or not. 

There is another method of monopolizing the water, and that is by the municipal 
authorities. All the larger towns in the Territory are incorporated into cities by an 
act of the legislature, usually embracing very large areas often covering large tracts 



PUBLIC LANDS. 499 

of country. In these cases the city councils pass their ordinances creating the offic3 
of water-master, and these water-masters are usually appointed hy the city council, 
and distributes the water to each and every farmer. In most all cases the ditches 
themselves have been constructed by the labor of individuals, by the labor of farmers, 
or by the labor of owners of town-lots, and the cities manage' it. I think half the 
evils likely to grow out of it will be remedied by the action of the courts. I have a 
case now pending for a neighbor ; I am. attorney for him and he is suing for distribu- 
tion of water. The difficulty is we do not know where we stand. I have myself ex- 
pended $1,750 on one canal, and I think 1 own that canal, but I apprehend in a very 
short time that the city corporation will have litigation about it unless they allow 
me my $1,750 part of it. 

Q. Who owns these ditches? — A. The city council claims jurisdiction, but I think it 
is my property. 

Q. Where there is no municipal authority and no use of ditches how do people irri- 
gate their land ? — A. We have a statute which provides for such cases. It" permits them 
to organize into irrigation districts. We have also a general incorporation law and 
some of them organize under the statutes which provide for the irrigation districts, 
and some incorporate under the general incorporation law. 

Q. Suppose that two came out here alone ; you go above on the river and I down be- 
low ; is there any provision or custom or law regulating our use of that water? — A. 
There are two rules that the people are governed by. The law of priority as recorded, 
by their own locations, and their customs which they themselves have adopted ; and 
then to a great extent by the decisions of the supreme court of California. There have 
never been any decision of our supreme court. We only have the decision of our dis- 
trict court. We scarcely have any Territorial court law. We also follow the Supreme 
Court of the United States which reverses the common law. The California supreme 
■court reversed it. The water law of the Pacific slope is court law to some extent re- 
gulated by act of Congress. The first man could take what he wanted and leave the 
rest. If he wanted he could take it all to the exclusion of the man below provided he 
used it in any useful way. That is, in mining, irrigation, and as a power for turning 
machinery with the intention of returning it to the stream. If the man below was the 
first man "he could stop the man above from cutting off his supply. I do not know 
whether our Territorial legislature at its next session will pass an irrigation law or not. 
I believe they would if they could only be of the opinion that they could have time 
enough. The main point I wish to suggest on irrigation, or rather the reason why I 
noticed the subject, was this, that the land laws at the present time, both pre-emption 
and homestead, require residence. 

Now if all our lands that are worth anything at all require to be irrigated, the ex- 
pense of procuring water and making ditches is far greater than the expense of living 
upon the land. If an expenditure of, say, from $2 to $5 per acre for irrigation could be 
taken as settlement and parties were then permitted to " prove up " under it, it would 
be of great advantage. I have expended more for irrigation than would fence the land 
with good fences. 



Testimony of E. S. Foote, ranchman, Salt Lake City, Utah. 

E. S. Foote testified at Salt Lake City, September 11, 1879, as follows : 
I am a ranchman in Richmond County, 18 miles from Evanston, Wyoming. I have 
been connected with cattle-raising for the last four or five years. We are very much 
at a loss to know what to do in the future on account of getting the title to our 
ranches. Under the present law we cannot enter enough land to make our ranch, 
and others can come in and cut us out. I am located on a small stream called Salera- 
tus Creek. 

It is necessary to have about 10 or 15 acres for each beef in order to keep them in 
fair order, and for sheep I should say five would equal one beef in that altitude, which 
is about 6,700 feet high. Agriculture is not possible there. It is not an agricultural 
district ; it is too frosty. In order to make a success of stock-raising we have to cut 
hay for winter. To do that we have got to irrigate, and we cannot safely go to that 
expense unless we have some title to our lands better than we have now. Each year 
the grass deteriorates as the lands are pastured, especially if they are overstocked. It 
takes a greater acreage to keep a given quantity of stock. That is more especially so 
as regards sheep ; it is caused mostly by overstocking. These wild grasses, if they are 
constantly cropped short and not allowed to go to seed, will run out very soon. I have 
lived in the Territory about 15 years, and that is my observation. I live southwest of 
here, and my county is becoming almost devoid of vegetation because the grasses have 
been eaten so closely. This could be avoided if we were allowed to own the land, and 
it would increase the quantity and quality of both. It would furthermore allow set- 
tlers to make improvements and introduce tame grasses, and improve their stock by 



500 PUBLIC LANDS. 

using fine bulls. Now it is l>ut little of an object to undertake to improve stock be- 
cause the neighbors get the benefit of the improvements one makes ; but if we had 
some sort of ownership to the land, so as to fence it and be able to keep other people 
off, we could then care for that land. I would suggest that the land be sold in suffi- 
cient bodies at a nominal price ; reduce it to the lowest price it has been in the mar- 
ket and subject it to a gradation act, say at 10 cents an acre. 

I would place some limitation on the amount of land each person might get (say 
1,000 acres to each man) to prevent whole counties being taken up by one individual. 
I would rather that the land should be sold in lots to a man who has herds in propor- 
tion to the number of his cattle. My idea is, that otherwise a man of moderate means 
would be crowded out of the country entirely, and I should make the number of cattle 
a man owned the unit of his acreage. I think a system that would allow the pastur- 
age homestead of a sufficient size to support a family, and in addition to allow a man 
to purchase to the extent of the cattle he has, would be a very good plan. 

The statute of this country allows three or more individuals to form an irrigation 
company and control the waters and distribute them ; and the company then have the 
absolute use of those waters afterward, to the exclusion of any one else. Under that 
system the streams are all taken up without any ownership to the land other than the 
possessory title, so that in fact, under the existing statute, three or four people may 
take up and control all the water back of it, the limitation being that they must use 
the water, the evidence of use being affidavits. ■ There is no limitation upon the right 
of a man to use the water so that it is possible for him to exhaust the whole of it to 
the exclusion of other parties. 

I have both cattle and sheep, and I find the sheep drive the cattle off. They pasture 
the grasses so short that the cattle cannot graze, and then, too, they do not like the 
smell of the sheep. We keep them separated by herders. I lived in Tooele County., 
Utah, for some years. I think about 10,000 acres would support one beef in that county 
now. I have known, in the past, when it would support one beef to every 10 or 12 
acres. It was then as good as my present range, and that result has been brought 
about by feeding it out. I was out in that quarter some months ago and I did not see 
any grass, except a few spears of meadow grass. Where I am now the land has been 
surveyed by the United States. We are within the railroad limits and have entered a 
section of desert land of 640 acres. We would buy the land if we could and make im- 
provements. 

A law concerning water was passed at the last session of the legislature. We have 
a sheep and cattle tax in our county, amounting to about 12 mills on the dollar. We 
cannot buy the railroad lands and I have been leasing them for 25 cents an acre, and 
sometimes, when a man has been irrigating his meadow all summer, it is lost to him in 
the winter by being taken by some other man, simply because the first one cannot own 
or control it. I would readily move away from these railroad lands to some other 
locality if it were possible to buy land. 

The average size of cattle herds in our range is from 2,000 to 5,000, and our sheep 
herds are from 3,000 to 15,000. There are constant conflicts between sheep and cattle 
men, and I think this question of disposing of the lands should be settled. Some cities 
have ordinances preventing sheep coming within a certain distance of them. If I was 
located with a herd of cattle a man might come in there with a band of sheep and 
drive me away from my home. A man holding the water right here and controlling 
all the land should be allowed to buy it, and ought to be made to. 



Testimony of Samuel Gilson, horse and cattle raiser, Salt Lake City, Utah. 

Samuel Gilson. 

Is engaged in raising horses and cattle, and has a ranch in Castle Valley, in Central 
Utah. He states that the pastoral interests of Utah labor under great difficulties 
from the fact that no person who pastures cattle upon a range can be secure in his 
occupancy. Any other owner of cattle may at any time bring a herd to pasture upon 
the same range, and overstock it so that the grass is rapidly eaten and then both herds 
are obliged to emigrate to other localities. This is not only common in Utah, but is 
an universal rule. Very few herds can occupy any range for a long period, because 
as soon as it is known that good grass is found there herds from other ranges which 
have been eaten out are driven upon it, crowding it beyond its capacity. The newly 
arrived herds have themselves been driven away by the same causes from their pre- 
vious ranges, or perhaps have been displaced by sheep herds, which will quickly drive 
off cattle from any range. There is no local iaw or custom by which a cattle raiser 
can be protected in his occupancy, and he believes that some way ought to be pro- 
vided by which such occupancy can be secured. Under the present state of affairs 



PUBLIC LANDS. 501 

there is no permanency of residence, and no identification of any pastoral interests 
with the soil ; nor is there any encouragement to make permanent improvements, nor 
any improvements beyond those which are absolutely necessary for the most temporary 
purposes. 

If some way could be provided by which ownership of a range or a tenure could be 
secured by law to the occupant it would in Utah be of great benefit to the cattle in- 
terest. There are ranges which are utterly unfit for ordinary agricultural purposes 
and suited only for stock-raising. If a person could locate in one of these places, 
and be secure in his holding, he could raise grass very cheaply by irrigation, and sus- 
tain his herd through the winter on a comparatively small tract of land. I mean 
small when compared with the wide areas over which they must now range in order 
to get enough grass to sustain life. There is a general conviction among cattle-grow- 
ers of Utah that the industry must come to the raising of tame grasses for the winter 
feeding of cattle, or else the whole industry will die out altogether. The wild grasses — 
the bunch-grass once so abundant everywhere — are soon killed off by protracted feed- 
ing, and do not grow again unless after long years, when in the slow course of nature 
they come up again from seed. Most of this wild grass has been destroyed already, 
and ranges which once were thick and deep with it are now utterly barren of it, and 
if left to nature many years, perhaps generations, must pass before it would be re- 
stored. Tame grasses would not be killed so readily, for they form a turf, and would 
yield hay in large quantities by irrigation. 

The Fremont or Dirty Devil River will never be used for irrigation successfully. It 
runs through Rabbit Valley, where a very large area can be devoted to the raising of 
grass, and is fit for nothing else. When the river leaves that valley it flows through 
a country where agriculture is impossible under any circumstances, and finally reaches 
the Colorado through deep, narrow caiions. If a stock grower could take up a suit- 
able tract in that valley and be protected in his ownership he could raise a large herd 
on a comparatively small tract. Most of the good ranges, except in the high plateaus, 
have been eaten out, and are now nothing but barren desert, and these have once been 
covered with a rank growth of wild grass. Through the gradual extinction of the 
grass the pasturage has grown poorer and poorer, and in a very few years the amount 
of stock raised in this Territory will be merely nominal, unless some way can be pro- 
vided by which human industry can supply the defect. All stock growers would 
agree with me, I think, that cattle-raising could be prosecuted profitably by raising 
tame grass by irrigation. But in order to do this it will be necessary to provide the 
means of allowing settlers to take up large tracts — I mean more than 160 acres, and 
probably as much as ten times that amount — and give them exclusive possession of it. 

In answer to the inquiry whether the use of water for irrigating grass would not 
take away just so much water from streams which are used for irrigating grain crops, 
I say no. The tame grasses ripen here in June or July, and would not require any 
irrigation after May or the early part of June. At that time the streams are at 
flood, and carry a very large excess of water. The grain crops require their principal 
irrigation in the latter part of July and August, when the streams have fallen off to 
less than half their volume at flood-time. The irrigating capacity of a stream for 
grain crops is the quantity of water it, carries in 1he latter part of July and in August. 
The irrigating capacity for grass would be the quantity which it would carry in May 
and June. In those months the streams could spare for a grass crop two or three times 
as much water as would be called for by the largest possible grain crops, without the 
slightest injury to agriculture. 

The methods of managing herds of cattle in Utah are widely different from those 
employed in Colorado. We usually take, whenever we can, a winter and a summer 
range. The winter ranges are in the valleys and lower levels generally. The summer 
rai.ges are high up in the mountains or high plateaus. The snowfall is always light 
in the valleys of the desert portions of Utah, and quickly melts. We have no storms 
of extremely cold wind, before which cattle must drift in order to keep from freezing, 
and in the severest winter winds they easily find shelter behind cliffs or in gulches or 
in cedar groves. They are never driven off the range by storms and very rarely perish 
on account of the weather, unless they are starved and gaunt. There is no general 
" round-up," but we keep the cattle from straying very far, and send out for them at 
all times ; in other words, keep them rounded up at all times. We corral them in the 
spring or early summer for branding, and brand at various times through the summer, 
whenever convenient. The summer ranges iu the higher levels are abandoned by the 
cattle when the snows come, and the cattle always come down in long trains, without 
being driven, and enter the valleys when the snow gets deep above. There they are 
easily caught and herded. 

I think the wants of the stock industry would be met if the lands suitable for pas- 
turage could be obtained from the government, either by pre-emption or by purchase, 
in tracts large enough to support a moderate herd. I think it would be unwise and 
even wrong to allow a few men to obtain land monopolies from the government. A 
policy which fixed no limit to the amount of land which an individual could acquire 



502 PUBLIC LANDS. 

would be very repugnant to the people with whom I am acquainted. But a reasonable 
tract, sufficient for the support of a moderate herd, or even of a small one, should, in 
my opinion, be placed within the reach of any man who chooses to acquire one. I 
think it would be better for him to buy it rather than to acquire it for nothing. Un- 
der the homestead law there is apt to be much perjury and dishonest acquisition of 
land, and I think the pre-emption of such tracts would be preferable. 



Testimony of James S. Mariineau, deputy United States mineral surveyor, Cache County. 

Utah. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1. 

The honorable Public Land Commission : 

Gentlemen : In reply to the questions in the circular forwarded to me, I have the 
honor to make the following report, numbering each answer to correspond with that 
of each interrogatory. 

For more than thirty years I have been a resident of this mountain region, in Utah, 
Nevada, "Wyoming, and Idaho, and have personal knowledge upon many of the sub- 
jects referred to ; but in regard to some of them I have not, and such will leave unan- 
swered. The past thirty years have been spent in surveying, civil engineering, explor- 
ing, and Indian warfare, which experiences have given me a very complete knowledge 
of the physical character of the country. In the hope that my communication maybe 
of some use to the Commission, I remain, 
Very respectfully, * 

JAMES H. MARTINEAU, 
Deputy United States Mineral Surveyor. 

ANSWERS. 

1. James Henry Martineau ; Logan, Cache County, Utah; surveyor, civil engineer, 
and deputy United States mineral surveyor. 

2. In Cache County nineteen years ; in the Territories about thirty years. 

3. I have not, except to locate in Wisconsin a land warrant received from the United 
States for service in the Mexican war. 

4. Have seen the settlement of these Territories, and know the experience of very 
many acquaintances. 

5. From one to seven years in pre-emptions ; in homesteads, after the five years 
expires, from one to three years. This applies to uncontested cases ; contested cases 
are longer. 

6. Have noted some. There are lands very desirable to enter upon which settlers 
cannot reside as prescribed by law, being compelled thereby to make false statements 
to the land officers ; such, for instance, as low, wet, swampy lands, upon which no one 
can live, but desirable and necessary for hay and pasturage. Also lands unsafe on 
account of Indians and possible danger to life. To remedy this I suggest, in case of 
wet lands, that parties may "prove up" their claim by making proof satisfactory to 
the local land officers, in connection with the " field-notes " of the United States sur- 
veys of the character of the tract in question, that said land is unfit for residence. In 
case of lands unsafe on account of Indians, proof from the county court or from other 
reliable authority should be presented as to the facts in the case; the time so una- 
voidably spent away from the homestead to be credited to the applicant. When possi- 
ble, settlers should reside on the land claimed. 

7. The public lands still unsettled are agricultural, pastoral, mineral, and timbered. 

8. 1st. By the field-notes of the land already surveyed. 2d. Lands unsurveyed. 
Lands adapted to agriculture to be surveyed under the present system. Mountains 
and broken, hilly land not adapted to cultivation should be ascertained as such by 
running standard parallels and meridians at certain distances apart ; from said stand- 
ards and meridians township lines to be run in cases where an inspection of the coun- 
try would indicate land suitable for subdivision. Mountains or broken land not 
worthy of subdivision to be surveyed by triangnlation. Mineral and valuable timber 
land to be located and subdivided according to the conformation of the country by 
canons, ridges, and basins. 

9. Having ascertained by standard parallels and meridians, and sometimes by lines 
running on township boundaries, the character of the tract in question, I would sur- 
vey agricultural land suitable for settlement by the present system ; timber land and 
pastoral to be parceled according to natural conformation by cations., ridges, &c. In 



PUBLIC LANDS. 503 

this region timber al ways grows, if any at all, on the northern or shady slopes of 
ridges and mountains ; never, scarcely, on the sunny or southern slopes. "Roads are 
only possible along bottoms of canons, winding in every direction ; and to obtain the 
timber it must be slidden down the rough, steep, rocky mountain paths with infinite 
toil. If these precipitous and deeply-seamed mountain sides were subdivided into 
sections as other land, the greater part would not be worth entry, because there would 
be no way to get to them without crossing some one else's claim. I would suggest 
that the long, narrow strips of timber along the side of the canon could be subdivided 
for sale best by runDing straight lines from the bottom of the canon to the top of the 
ridge, dividing it into strips of from 40 to 160 acres. For platting and numbering a 
line should be surveyed in the bottom of the caiion, connected with some United 
States survey corner or monument. Pastoral lands on the sunny side of mount- 
ain ridges may be laid out in a similar manner ; in other places, according to the 
natural basins and drainage of the country. Mineral lands to be surveyed substan- 
tially as at present, providing that United States mineral monuments may be properly 
connected by triangulation with United States surveys or noted objects. "" The present 
system of disposing of public land is good, so far as relates to land capable of produc- 
ing crops without irrigation ; but for lands that cannot be cultivated without irriga- 
tion, justice to the hardy pioneer should give him the land he redeems from desert 
sterility, the settler merely paying the expense of survey and fees for making the 
necessary entries in the land office. If this be deemed inexpedient, let the prices of 
public lands be graded. Lands suitable only for stock range not to exceed 25 cents 
per acre ; arable land needing irrigation not exceeding 50 cents per acre ; timber land 
to be graded according to kind and amount of timber at from 25 cents to $2 50 per 
acre. 

AGRICULTURE. 

1. Climate is mild in Utah and Nevada ; rainfall light. Season for growing crops 
about as in New York State. Snow rarely more than 6 or 8 inches deep in the valleys; 
in the mountains 2 to 25 feet deep. Water for irrigation comes from small mountain 
streams fed by snows of winter. 

2. The rainfall is usually from October to April, with a few light showers during 
the rest of the year. Scarcely any rain falls in irrigation season, which is from May 
to September. We depend entirely upon irrigation. 

3. Not more than 1 per cent, of the arable land. 

4. Of the whole Territory, I think about 15 per cent, by natural streams ; by artesian 
wells, about 5 per cent, additional. 

5. Wheat, oats, barley, rye, corn, lucerne, clover, grass, 'potatoes, and all varieties of 
root crops glowing in the Northern and Middle States. 

6. Difficult to say. Some land — loamy — will do with two irrigations; a loose, 
gravelly subsoil necessitates as many as ten. 

7. Small mountain streams and brooks. In some cases the waters of the larger 
rivers, as Bear, Weber, Logan, and Sevier. 

8. I have an extensive practical knowledge of irrigation, but cannot say much in 
this report. Grain must have water when the kernel is in the dough, or it will shrivel 
in ripening. Potatoes must have water when in blossom, and when the tubers begin to 
form. So with other crops. Irrigation greatly increases the fertility of the soil, espe- 
cially when the water is muddy ; or even if clear, when not applied too long at a time 
in one place. Crops have been grown at an altitude of 7,000 feet, and some kinds 
will probably mature still higher. 

9. Ninety-five per cent, insoine localities. When water is scarce, it is all used. 
The water returned to ditches is only that which escapes control. Waste of water is 
rigidly guarded against. A man is entitled to water in proportion to the number of 
acres to be watered — in many localities, from one to two hours to the acre in daytime ; 
double that during the night. The main canals and their numerous branches are each 
placed in charge of a water-master, who gives the stream to each in his turn ; and who 
also has charge of repairs, &c. 

10. In the settled portions it is all taken up. The local customs and laws are as fol- 
lows : Settlers in a new place take as much water as they need in a canal. If there be 
water still unclaimed in the stream other parties may take it. No one can water to 
the detriment of first parties claiming and using it. Water rights are bought and sold 
as other property. Selling land is also a sale of the water right of said land unless ex- 
pressly stipulated to the contrary. 

11. But two have come before the United States district courts. They were the cases 
of men who endeavored to take the water from previous owners by new canals ; but 
the decision of the court was against them, confirming the rights of previous owners. 

12. Twenty-five per cent. 

13. It is. Two to three thousand acres. 

14. They should only be sold to actual settlers. 

15. Six acres. This is about the average for pasturage. 



504 PUBLIC LANDS. 

16. One hundred is the least number on good range ; four times as many on the 
usual quality of grazing. 

17. Do not know. 

18. Diminished rapidly. 

19. No ; cattle cannot be confined by fences on the range. , It would greatly. Men 
raising improved stock would not then be troubled by inferior stock getting into their 
herds. 

20. Springs and mountain streams. 

22. Five. 

23. Diminished. Sheep kill out the grass in three or four years. 

24. No. Cattle and horses will not graze after sheep unless compelled. 

25. None that I know of. 

26. Do not know. Sheep are from 1,000 to 8,000 in a herd ; cattle, 1,500 to 5,000. 

27. Run standards and meridians a few miles apart to learn the physical nature of 
the country from which subsidiary lines, township or otherwise, may be run to such 
portions as need subdivision or parceling. Sell first-class agricultural land at $1.25 
per acre to actual settlers ; lands requiring irrigation at not more than 50 cents per 
acre ; pastoral lands, 2,500 acres to each settler at 25 cents per acre ; timber lands to be 
classified and sold at from 50 cents to $2.50 per acre to actual residents. 

28. There is. The first United States surveys made over twenty years ago, especially 
under Mr. Burr, were mostly made upon paper only. Of the corners actually set many 
were destroyed by prairie fires long before settlement; many by jealous Indians and 
some by thoughtless whites, herdsmen, and others. It would be a great blessing if the 
government would authorize a resurvey in some localities, even if it should be at the 
expense of the county or Territory interested. 

TIMBER. 

1. It is scarce ; red pine on the lower ridges ; white pine and aspen (the latter worth- 
less) on the higher ; very difficult of access, and requiring from two to four days for a 
man to make one round trip. 

2. Very little planted, there being no ground or water for it. The pine will not grow 
in low altitudes. 

3. By sale, parceling the timber land in strips running from the bottom of the canon 
to the top of the timber-covered side of the mountains, usually from 40 to 100 chains, 
the base line in the bottom of the canon to be carefully run, connecting with some point 
of the regular United States survey. These strips to be from twenty to forty chains 
wide. 

I prefer sale of timber, because it is the only effectual way to preserve it. A man 
will naturally look after his own property, but be wasteful when it is not. If timber 
land be leased an army of inspectors will be necessary, or a failure to preserve the 
timber will result. Men leasing timber should be required to keep up the growth of 
timber by planting small trees, and protecting small timber naturally growing thereon. 
But few men could be found who would carefully supervise this, and without such 
constant supervision the scheme would be a failure. But men owning the timber, and 
knowing they could never make another entry, would preserve it. 

The local land offices could best see to these matters, being nearest the ground and 
familiar with the country, people, circumstances, and necessities of the case. They 
could appoint overseers for each county, and cause all Land parceled out to be returned 
to the surveyor-general's office as other surveys. Railroads should be prohibited from 
purchase. They, more than all other causes combined, destroy timber, using generally 
small timber suitable for single ties, while settlers cut the full-grown trees. 

4. Yes. 

5. There is. The same kind of timber springs up from seeds, but is of slow growth. 

6. Forest fires are generally accidental, originating sometimes by lightning, often, 
by smoldering embers of deserted camp-fires, scattered by gusts of wind among sur- 
rounding leaves and twigs. Hundreds of square miles of timber have been burned 
this year in Utah alone. In Utah a Territorial law imposes a fine of $1,000 for setting 
fire on the public domain, but it is almost impossible to ascertain the perpetrator of 
the act. If men owned the timber land it would be watched by persons directly inter- 
ested. The settlers must have timber for building, mining, and manufacturing pur- 
poses. The country cannot be inhabited without. To absolutely prevent timber from 
being used would cause a region of wonderful mineral and agricultural wealth to 
revert to desolation. Men can no more be prevented from using the timber than from 
drinking the water of the mountain stream. 

8. Local custom requires meu who cut timber to remove it in a reasonable time, or 
.any other person may take it. 

9. Yes. They know better than any one else can the conditions, requirements, and 
circumstances pertaining to their respective districts of country, and from personal 
acquaintance of their deputies and others most liable to understand. 



PUBLIC LANDS. 505 

LODE CLAIMS. 

1. Some experience in surveying claims; none as an attorney. 

2. A great defect, I think, is allowing one claim to overlap another when surveyed 
for patent. There are many cases of from three to seven conflicts in regard to super- 
ficial area of ground, and litigation, expensive and vexatious, renders many good mines 
practically worthless. 

3. It is very unjust to the original and rightful owners of the claim and very injurious 
to the prosperity of the country at large. Out of many cases, instance the " Shoo Fly" 
in the Ophir Mining District, Tooele County, Utah, which overlaps four other and pre- 
vious claims; and some of the four also overlap each other. The "Mono" overlaps the 
" Shoo Fly," and the " Utah Queen " both the former. Also, in the same case, the " I 
X L" overlaps the " Grecian Bend," which covers part of the " Mono," which also 
overlaps the "Shoo Fly." I should, infer, if government intends to protect and give 
title to the original locator, it should only allow a claimant for a particular location 
upon conclusive evidence that such location was actually the first ; afterwards no 
party should be allowed to claim ground previously filed on in the United States land 
offices. 

4. The outcrop of a vein or lode. I think not. Slides of earth or rock frequently 
occur, covering what was formerly the outcrop of a vein or lode. 

5. Not always. 

6. Frequently. 

7. Not personally ; have often heard of such difficulties. 

8. Cannot say positively. 

9. I think not. 

10. They may, but not in my personal experience. 

11. To their disadvantage. Parties make such claims sometimes for the purpose of 
contest and to force other parties to buy them off by compromise. 

12. Have no experience of such a case. 

13. I think so. 

14. Possibly. 

15. Yes. In Logan, Cache County, by about twenty parties, some miners, others citi- 
zens, but all interested in claims. A recorder was elected, with power to appoint a 
deputy. His duty was to make record of locations, make and record minutes of mining- 
district meetings, together with the mining-district laws (all such records being open 
to inspection by interested parties during business hours). The main object is to keep 
a true record of claims, showing direction, length, and width claimed, time of loca- 
tion, &c. The discoverer posts a notice on the ground, giving names of locators, gen- 
eral direction of claim, and number of feet claimed, and width. They claim the vein 
or lode, with all its angles, dips, branches, and variations, the specified number of feet 
as to length, and, between end lines, to follow the vein downward wiierever it goes, to 
the center of the earth. The effect of such a notice, recorded within the specified time, 
is to give them absolute possession. 

18. They have not, I think. 

19. I think not in many cases. Prospectors open claims in places many days' jour- 
ney from United States land offices, and often, if they were compelled to make such a 
journey, their claims would be taken by rascals while they were gone. A local mining 
district obviates this danger. 

20. I think it should. 

21. Am incompetent to suggest anything in so important a matter. 

22. I think so. Five years. 

PLACER CLAIMS. 

1. About one-half. The minerals are specular, bog, and hematite iron, silver, cop- 
per, lead, antimony, coal, and black, white, and variegated marble. Also sulphur, 
copperas,. alum, manganese, tellurium, cinnabar, and mineral wax (so-called). 

2. Never acted as attorney in such matters, and am not prepared to answer. 

3. Same answer as No. 2. 

4. 5, and 6. Same answer. 

7. Have never heard of such a thing being done. 

8. Not to my knowledge. 

9. I do not. 

Respectfully submitted, 

JAMES H. MARTINEAU, 
United States Mineral Surveyor. 

Note, — I have been absent for several weeks in Idaho, which will explain why I 
have not answered the circular sooner. 
Respectfully, 

J. H. MARTINEAU. 
Logan, November 1, 1879. 



506 PUBLIC LANDS 

Testimony of R. P. Mason, engaged in the timber and lumber business, Salt Lake City, Utah.. 

H. P. Mason, who is engaged in the timber and lumber business, testified at Salt 
Lake City, September 15, 1879, as follows: 

We purchase lumber cut here in Utah on the government lands. I think that the 
timber lands should be protected in some way. The timbermen are willing to satisfy 
the government. As I understand the law the timber can be confiscated if it is cutr 
from government land. I have had some talk with the lumbermen, and they appear 
to think that they should be permitted to buy the land or pay stumpage on it. If they 
can satisfy the government in any way they would be willing to do so. They don't 
wish to be annoyed in their business. I think the whole subject might be better man- 
aged if placed under the control of the district land office. I think the land ought to- 
be sold. There is not one mill here that can control much forest. They cannot go 
more than two or three miles ; it does not pay. The timber is high on the mountains, 
and is hard to get at. But it would be necessary to sell the lands very cheaply, because 
the men have to buy so much land to get the necessary amount of timber. I think it 
should be sold in unlimited quantities for that reason. A large amount of timber is 
destroyed here by fires, and all the timber will go in a few years if it is not protected. 
I think it is better to give the inhabitants a chance than to let fire destroy it. The. 
people are bound to get it, and if there is no law permitting them they will take the 
chances on it. The demand is great, and they will have it and supply it in any case. 
There is very little timber here. The best timber comes from the East and poor timber 
from the West. There is not enough to supply the local demands, but I think that 
what is here should be protected. I think it would be better for the government to 
get something for it than ? o have it destroyed by fire. Ownership would tend to pro- 
tect it. The people do not feel safe in doing anything because of the unsettled condi- 
tion of affairs. I suppose there are 500 men in the timber business in the Territory of 
Utah, and they are only getting a living at it. They are willing to obey the law if 
the government makes it possible for them to do so. 



Testimony of William B. May, cattle raiser, Nephi, Utah. 

Mr. William R. May, of Nephi, Juab County, Utah : 

Has resided here since 1860; is engaged in raising cattle and to some extent in farm- 
ing ; has been assessor and collector, and also has practiced law ; is a member of the 
Mormon Church. 

On the subject of occupying and irrigating land he states that the Mormon people 
have been in the habit of proceeding in detachments consisting of a number of fam- 
ilies, sometimes as great as thirty or forty, but usually less, to some stream which. 
could be used for watering farms. They at once divided up the land in their own way, 
being governed by the capacity of the stream and any local considerations incident 
to the place. The land was subdivided into tracts of from 10 to 20 acres, necessarily 
contiguous, and in as compact a body as possible, partly for convenience in irriga- 
tion, partly for defense against Indians. The first labor was given to building a de- 
fensive work against attack and in providing shelter that is — houses of preliminary and 
very primitive construction. The next work was the irrigating ditch, or, indeed, the 
ditch progressed often from the start along with defensive operations. It was dug by 
the co-operation of all the colony, each man being expected and required to give to its 
construction an amount of work proportional to the acreage of his laud. There was 
no act of incorporation of ownership in the ditch at first, it being regarded as the 
common property of the community. 

The titles to land were acquired in the following manner : After the original sub- 
division was made into ten and twenty acre lots, the land was held practically for 
about ten years, or even fifteen years, under squatter rights. As nobody but Mormons 
lived here then such tenure was as good as by patent. About ten years ago the laws of pre- 
emption and homestead were extended over the Territory, and it was considered of 
importance to then acquire government titles. Some of the land was then taken up 
by pre-emption, some by homestead. At the same time some of the land was also 
taken up as township sires, but this method was not extensively followed. To take up 
a township site it would be necessary to have officials and a civil government organiza- 
tion, and this was thought to be an unnecessary expense and money was exceedingly 
scarce. All the temporal as well as ecclesiastical affairs of the people were regulated 
by the church, and the double government was thought superfluous, so the township- 
site locations gradually fell into disuse and homestead and pre-emption were chiefly 
resorted to. 

When the township method was employed the settlements were incorporated as 
cities under Territorial law, and a regularsui/e of officers, mayor and aldermen, &c, 



PUBLIC LANDS. 50? 

were appointed, but none received salaries. The entries of township sites at the land 
office were made in conformity with law by the mayor of an incorporated city, or by 
a probate judge of a county in behalf of other settlements, and the payments were 
made by these officials for their people, and when the patents were received the deeds 
of the several parcels of land were made by the judge or mayor to the respective occu- 
pants. Such farm lands as were required in tracts lying outside the township site 
were homesteaded or pre-empted by persons in 160-acre tracts,, and titles to the sub- 
divisions of these quarter sections were deeded by them to the several occupants. 

There is, however, in nearly every settlement a small portion of the land which has- 
been taken up as township site, and this was rendered necessary by the very compact 
manner in which people were compelled to cluster together for defense against In- 
dians and for irrigating from a common ditch dug without capital. By far the greater 
portion, however, has been homesteaded or pre-empted. 

In the distribution of water rights each man was allotted his share in proportion to 
his acreage, provided he had done a corresponding amount of work upon the ditch. 
The capacity of the stream had been carefully estimated, and no more water was as- 
signed to the land than it was believed to be able to irrigate. In the year 1870 it had 
become manifest that the quantity of water in the streams had notably increased, and 
more fields were assigned to incoming settlers and a supply of water furnished to* 
them. This was done by common consent, and the water was distributed under the 
supervision of the town water-masters. The rights of the earlier occupants to water 
are, however, undoubtedly prior rights under the law, but there has never been occa- 
sion to insist upon this priority to the deprivation of later occupants, because the sup- 
ply, though strictly limited, has in general been sufficient to meet the principal wants*. 
The advice of the church is always followed in the distribution and regulation of 
water. 



Testimony of J. B. Neil, register of the land office at Salt Lake, Utah. 

J. B. Neil, register of the land office at Salt Lake, Utah, testified as follows : 

I think that all the forms in homestead and pre-emption entries could be much* 
simplified. The notice of intention to prove up in homestead and pre-emption cases- 
is altogether unnecessary and is very provocative of contests. In canceling an aban- 
donment of a homestead we take the proof here and send it to Washington. We make 
a report to the effect that such cancellation proof has been taken, and then wait until 
the department at Washington sends back to us an order for the cancellation of the 
land. We cannot cancel the entry until the order comes from Washington. I think 
that the cancellation of homesteads abandoned should be made at the land office where- 
the proof is taken. It is done upon our recommendation anyhow, and the interests oJ 
the public would be subserved if we were permitted to declare the abandonment. It 
takes six months for the order of relinquishment to come from Washington here. lir 
would be better to do it right in the local office, to the saving of the time consumed ia 
forwarding the case to Washington and getting it back. The rule is now that the per- 
son in possession of the land cannot file until the.abandonment is declared, and the 
local land officers are not allowed to communicate to him in advance ; and thus it fre- 
quently happens by reason of the rule, and because we have no right to notify anyone, 
that other persons than those equitably entitled to the laud rush in and file and get it. 
I think that the same rule should apply as in contested cases ; i. e., we should be 
allowed to send notices. 

I do not see any reason why the inception of mineral titles should not be just the 
same as in the pre-emption or homesteading of agricultural lands; and the whole sys- 
tem of district recorders should, I think, be abolished, as a man's title to a valuable 
piece of property now rests upon a recorder's integrity and upon his keeping the rec- 
ords correct ; and it is certain that they are frequently kept by incompetent and prob- 
ably illiterate men and subjected to all the inconveniences of a miuing camp, espe- 
cially in a new district. I think the registers and receivers of the land districts should 
have exclusive charge of and jurisdiction over the timber, and if the present law was 
amended to do that, it would be of great advantage to the government and to the 
people. 

I think that under certain limitations a sale of all the lands adapted to pasturage 
would be advantageous to the stock raisers of the country, but I have not thought of 
any system of disposing of them ; but certainly in any modification of the present law 
the interests of owners of existing herds of cattle should be protected. 

I think the water rights in this district are well taken up. The general estimate of 
agricultural lands in this State is about 50 per cent. These agricultural lands consist 
of desert and pasturage lands. I thiuk there is very little irrigable land that has not 
been taken up ; I mean lands available without vast exnense in the building of 
ditches, <fec. 



508 PUBLIC LANDS. 

Since I have been here, a little over two years, both seasons have been exceedingly- 
dry ones. From what I can learn agriculture does not pay well here, and would only 
be profitable on a large scale. The resources of Utah are mineral and stock raising. 
I think the greater part of the land classed as agricultural is really only pasturage 
land. 

I have had no complaint of conflicts between the sheep and cattle men. The people 
in filing on their land, complain to some extent that the stakes are gone, and they hire 
surveyors to find their corners for them. The stakes are not permanent in the first 
place, and time destroys them ; they rot off or are broken down and destroyed. I 
think it very advisable and necessary that some permanent form of stake be used. 
There was one case in this office of complaint where land was marked as mineral when 
it was agricultural. I know of no way under the present system by which a more 
correct classification could be made. I think there could and should be an improve- 
ment in the classification, but just how it should be done I would not like to undertake 
to say, for I have not given it sufficient thought. In the interests of this Territory, I 
think the whole matter ought to be settled promptly. I think there is a great deal of 
red tape that might be done away with, and that registers and receivers should have 
more jurisdiction, and that they should, have a right to subpoena witnesses and per- 
petuate testimony. In regard to improvement in administration, I think it is not the 
fault of a law but of the land office. Now, for instance, in regard to the difficulty of 
obtaining patents, take the case of a cash entry which involves much delay in the 
general office. Probably there are a great many deficiencies in the preparation of the 
case, particulars that are lacking, and the clerk at Washington will go over that case, 
and he will discover these deficiencies, that something is needed to complete the case. 
He sits down and writes a letter calling for three or four supplementary proofs, and 
afterward he finds other deficiencies and writes another letter, and all this causes a 
delay of not less than six months, where it is not neceesary at all. In the homestead 
and mineral divisions they are more practical. I think in a great many instances 
that the register and* receiver should have final jurisdiction. 

The office regulations and the law conflict in the matter of contracting for cancel- 
ing the land before the pre-emption is made. This compels men to commit perjury. 
Inasmuch as the pre-emption law has a homestead feature in it I do not see any 
liarm in repealing the pre-emption act. I am in favor of selling the timber land, not 
under the present law, but let the purchaser take them where he likes. I do not just 
know what to put the limit at, but I would sell them at a price not to exceed fifty 
cents per acre. Destructive timber fires could be stopped in a great measure by sell- 
ing these lands ; self-interest will protect them and self-interest will protect the grow- 
ing timber. The present law does not protect it in any respect, not even in the collec- 
tion of stumpage. There are a few timber-culture entries here, about thirty-eight in 
-all. My objection to the present timber-culture law is this, I think there should be 
no restriction as to the section. 

Under the town-site law an incorporated town has the right to take up a certain 
number of acres according to the population. Then under the act of March 3, 1877, 
they were allowed additional entries not to exceed 2,560 acres in any case* In this 
Territory the legislature has incorporated villages and towns so that it is possible, I have 
been told, and I believe it to be true, that a man could enter the northern part of this 
Territory and go out of the southern limit without getting outside of incorporated vil- 
lages, and that permits them under the law to exclude a person who would want to 
make an entry within the incorporated limits of a village, although the village might 
not be settled. Any person they do not want in their incorporated towns they can 
prevent taking up lands in that district. That is the construction given to the law, 
though I do not think that it was the law. It is vexatious and prejudicial to the in- 
terests of the country. 

Concerning mineral claims I am hardly in favor of a square location. I think the 
chief objection to that would be that you would have to take such a large tract in or- 
der to protect persons in deep mining that it would prevent prospecting in large areas 
of ground. I suggest that as an objection to square locations. 

I think that registers and receivers should have the right to go away from their 
office to take proof and evidence whenever the interests of a large body of settlers 
require it, and I think it would be a good idea to give to registers and receivers the 
power of inspection officers. I think it would be an excellent thiug to devise some 
simple method of distributing the decisions of the General Land Office upon all land- 
office matters to the various district offices. 



Testimony of James R. Nounan, miner, Salt Lake City, Utah. 

James H. Nounan, of Salt Lake City, testified September 15, 1879, as follows : 
I have been a miner for some fifteen or sixteen years. I think there ought to be a 
square location about 1,500 feet by 1,500 feet, for the reason that there is not one man 



PUBLIC LANDS. 509 

in a thousand but requires a considerable amount of timber, even :f he has a suffi- 
ciently large dumping ground, and if they could acquire title steadily to the land it 
would be far better for the prospector to come into this office and file' upon the land, 
and then be allowed to make final proof within twelve months. I have had some ex- 
perience in that direction. I have been prospecting extensively and spending large 
sums — several thousand dollars — upon different claims, and then the trouble was so 
great to get a patent that rather than expend the money to get a patent I would ex- 
pend it in working the mine, without ever acquiring title. The result was that I lost 
nine-tenths of the claims I had, while if I had had a speedy way of acquiring title I 
would have had my claims secure. 

Under the present law it requires $100 worth of work per annum to acquire a title, 
and yearly payments all the time until the patent is issued here. The government is 
without its acreage, and the party himself has no security for his claim. He might 
be called away without the least "fault of his, and some one else jump the claim, 
There is much needless litigation, too, under the present law. If the prospector were 
provided with a speedy and simple way of acquiring title to his land, he would always 
do it. I think the whole routine of acquiring title ought to be done in the district 
land offices, and that the recorder's office should be abolished. 

I was United States timber agent for some years. I have had a great deal of expe- 
rience in timber matters. I know that there is not only immense bodies of timber 
destroyed annually by fires, but that nine-tenths of all the timber that is taken from 
the public land now is taken without stumpage being paid. I would put this matter 
under the district land office, and I would sell the timber land. I would have i fc all 
surveyed and sold, requiring the possession of agricultural land by the party applying 
as a condition precedent to pre-empting it, I would sell it to actual land owners at 
the rate of from $2.50 to $5 an acre, in proportion to the land actually sold. I would 
not sell it to everybody. I would cut this timber land up into 10-acre tracts. All the 
timber land is worth something. A great many of the farmers would just as lief 
have timber land with a small growth upon it as large timber, because the small tim- 
ber is more accessible. This small timber is mostly quaking aspen and scrub or small 
pine. It makes the very best of fuel. The heavy pine is confined tp the high mount- 
ains, and is hard of access. It is a costly process to get the timber. What you want 
is to get the timber lands into the hands of the people, because when they own the 
timber they will protect it. There has been so much timber destroyed by fire I think 
it is time the government should take some action in the matter. 

If a man is allowed to take up this timber land and acquire title to 10, 20, or 40 
acres, as the case may be, it identifies him with the timber and he will protect it, and 
thus he will protect other timber around his. I think also that the owners of mines, 
mining companies, &c, should be allowed to take timber as they need it, in quantities 
not to exceed 40 acres ; allow them to buy in that much timber land. They would 
rather buy timber delivered to them, and I can imagine a case (where the necessity is 
forced upon them) where, to protect themselves, they must have the timber. Of course 
I would not allow them to take up all the timber, and thus make others suffer. Many 
of the mines and prospects are worked under lease, and I think those mining them 
should be permitted to go and cut such timber as is necessary for the development of 
the mines. As it is now, they will ride right in sight of a fire and will not put it out. 
Nobody has the care or custody of the public forests. Fishermen, hunters, and pros- 
pectors are careless about their camp-fires. Prospectors are more careful than any one 
else. They know the value of the forests ; but hunters and fishermen are very care- 
less. There is nothing to put the fires out with ; they exhaust themselves after con- 
suming large quantities of timber. I know of one man who built a little mill on a 
mountain-side, and the water ran dry so that he had to leave it. This man had cut 
down five thousand fine trees, that now lie rotting on the ground. 

I believe in selling off the arid pasture land to the people, no matter in what quan- 
tity. I think these lands are worth about 25 cents per acre. I believe people will buy 
them at that price. It is difficult to draw a line classifying these lands. I would 
confine the term arid to lands where there is no water for the purpose of irrigation. 

I wish to qualify my statement concerning the timber lands. I would allow the 
owners of mines upon which had been expended the sum of $10,000 to pre-empt tim- 
ber lands not to exceed 40 acres in extent, but I would not allow a mere prospector to 
pre-empt the timber land ; but I would allow prospectors to cut all the timber that 
they want for temporary use. 



Testimony of Charles Popper, cattle raiser, Salt Lake, Utah. 

Charles Popper, resident in Salt Lake, by trade a cattle raiser and butcher, testi- 
fied, September 10, 1679, as follows : 

I have about 3,000 head of cattle. I keep them on my ranch on Green Eiver. In 
summer-time I keep them on my mountain ranch back of Green Eiver, at an elevation 



510 PUBLIC LANDS. 

of between 6,000 and S,000 feet. The range is about 10 miles square. There is no as- 
sociation of cattle growers here, and we have no way of protecting ourselves against 
the inroads of other cattle owners, which usually causes us trouble. The local law 
here does not protect a man in his range. I do not own any improved land. At pres- 
ent the water is very scarce. It is an exceptional year ; ordinarily there is plenty of 
water for my stock. I have my range well stocked — as much as it should be. I think 
these questions ought to be settled promptly. The present unsettled condition of 
affairs tends to the destruction of the cattle interest. It requires so large an amount 
of capital to buy pasture lands that if they had to buy their land it would exclude 
men from going into the business — that is, men with a reasonable amount of capital, 
and at present prices. I do not believe that pasturage land should be sold at all. I 
think it should be leased, and for this reason: This country might all be occupied and 
ultimately settled in time to come, and it might be detrimental to the government to 
sell the lands now at such a trifling cost as would justify men in buying large quanti- 
ties, or to give them away. I would not favor buying in any large amounts; it would 
be monopoly. My plan of leasing the lands would be better than dividing them into 
pasturage homesteads. If a law could be made so as to protect the stockman and tax 
the cattle he would have a possessory right to that range and be able to keep others 
from jumping in upon him. I think it would be a very good idea to allow one person 
to have 3,000 acres of land; then, in order to protect the present owners of stock that 
are now here, to allow them to purchase sufficient land in excess of the 3,000 acres as 
would support the cattle they now have. 

■ As regards increase or decrease of the rainfall in this country, I would say that I 
have lived here ten years, and the rain has stood about the same up to this present 
year. 

As regards the number of acres of pasturage lands in this State that would sustain 
one beef, in my opinion it requires a person to use the range in order to come to any 
correct conclusion as to the number of acres of a particular tract of land required to sus- 
tain one beef. I should say 10 acres to a beef on my range. I mean, by 10 acres, 5 
acres on a winter range and 5 acres on a summer range. 

A sheep is an animal that is close in grazing. In the first place they tramp the 
ground more than cattle do, and in the next place they bite down into the roots so 
that the grass will not grow. I think five sheep will stand against one beef. Sheep 
and cattle won't go together. I have heard of some conflicts occurring between cat- 
tle and sheep men. 

I think that cattle can be better kept upon a range which is fenced, better fed 
within inclosures, will make better beef of an improved quality than if you move 
your cattle from one range to another. There have been a great many small cattle 
men in Northern Utah, but they have gone out ; they have been bought out by other 
parties. The tendency in this country has been from year to year to consolidate the 
small owners of cattle. I will give you an illustration of this. When I first came here 
I was engaged in the butchering business. I could get at any time, even on the out- 
skirts of the city, as many good beeves as I needed. All I had to do was to go across 
the river and get the cattle ; but ten or fifteen years ago the country commenced to 
grow up and the cattle were driven farther off. They have adopted a new fence law 
here, that cattle, if they come on a man's land, shall be held liable for damage. This 
is a local law. Many people make a business of driving the cattle on to their land 
and thus obtain the price for improving them. When I went where I am now there 
were no other persons near me. Now they have made a settlement right next to my 
range, and cattle men drive their cattle over on my pasturage, so that I shall have to 
look for another range. 

Another reason why small men go out of the business is that they have to drive 
their cattle a long ways, and there is no security for them because there are no fences. 
Ranges in this country decrease from year to year by being overstocked. It takes more 
grass to keep a herd next year than it does this. Grass must sow itself just as any 
other plant. We have bunch-grass on my range and also blue grass that grows on the 
bottoms. Now grass seeds in the fall, and you must give it a chance to seed itself. If 
it is eaten off, seeds and all, it does not come up again, and this destroys the range. If 
we had a large tract we might by using part at a time protect the seeds, and thus keep 
up our range. If we were permitted to fence and otherwise protect it the grass could be 
increased. It is my opinion that if settlers could acquire possession of large ranges a 
great many people in Utah would be disposed to go to work and raise tame grasses, 
like timothy, red-top, &c, to winter their herds upon. They could cut these grasses 
for hay for their stock, and that would tend to rebuild the stock interests of the coun- 
try. The thing is done now to a great extent. I have one little patch of five acres 
that I have cut fifteen tons of hay from in one season ; and I have one patch that I 
have cut off the five acres sixty tons of " lucerne : " then again I have 40 acres that 
I have not cut 20 tons from. This is due to insufficient irrigation. 

Question. You stated that you had three thousand head of stock on your range, 
-which is about 10 miles square each way ; that would be 100 square miles, or 64,000 



PUBLIC LANDS, 511 

acres. Divide that among 3,000 or 4,000 head ; that would give about 20 acres to each 
beef, would it not ? — Answer. Yes, sir ; that would be sufficient for them, but there is 
other stock running on the range besides mine, and they are eating out the range very 
rapidly. 

Q. There is another serious proposition of leasing the public lands, which is this: 
that it would require a swarm of officeholders to collect the rents. "Would it not 
cost the government more to collect the rents than it would come to ? — A. No, sir. I 
think there is a remedy for that. There would be places provided at which to pay 
this rent, and there should be heavy penalties, so that it would be cheaper for a man 
to come up and pay than to try and get around it. I do not think it would require 
many men to watch the land to see that grazers do not get grass for nothing. A man 
in possession of a piece of land would see that there was no encroachment upon it, and 
If a man adjoining any other man encroaches upon it the occux>ant will be put to seek 
the remedy. If the penalty is severe enough, they will come up and not take the 
chances of their neighbors' reporting their delinquencies. Thus, unless persons living 
on the public lands paid the rent they would be trespassers. I do not think that such 
a course would, as suggested, give rise to a myriad of lawsuits and quarrels, and 
cause such friction in the management of affairs as to destroy any good that might 
come out of it, or make the government very obnoxious in attempting to enforce the 
penalty. As it is, the government gets no rental at all ; and if the rental was made 
very light it would not be obnoxious. It could be very light and still bring in a rev- 
enue to the government. I would make the rent light, but the penalties heavy. 

Q. That makes the government of the United States, then, the landholder and all 
these citizens the renters and tenants. Is not that paterning too much after a mon- 
archial form of government ? — A. Well, inasmuch as it is for the protection of citizens, 
I do not see any objection. It might be better for the government to part with the 
title of the land to private citizens and let them fix, through local courts and legisla- 
tures, or arrange themselves, the prices, instead of having the government do it, if 
they sold it at a small price per acre. 

Q. But your idea is that the lands in the Territory will become settled up in the 
future and then the government might get a better price for it. — A. Yes, sir; that is my 
honest opinion. The only thing I fear is monopoly. 

Q. Suppose the government should rent you, as a cattle man, for a period of years, 
say five or ten, these lands at a small rental per annum ; at the end of that time would 
you not conclude that you owned the property? Is it not possible that such claims 
would be made by the people ? — A. No, not any more than there would be in the case 
of any other leased property through a private party. 

Q. Would not this renting large tracts for a series of years interfere with the settle- 
ment of this land and take it out of the market for the time being, and thus practi- 
cally create this land monopoly which you fear? — A. Yes, that would have to be 
guarded against by adequate provisions. For instance, I own a herd of beef-cattle ; 
in order to protect me from monopolies, I would have to make proof of the number of 
cattle I had, and as they increased I should have to make application for more land. 

I would like to say a word in regard to the causes of fire. I will tell you how these 
fires which you see on the mountains are created. I pasture my cattle in these mount- 
ains because there is pretty good pasture there. The country being dry around here, 
there was a large sheep-herder thought he would take his sheep on to that pasture. 
My herders told the sheep man the cattle were there first, and that he ought to go 
away. The cattle men set their dogs on the sheep, and in revenge the sheep boy set 
fire to the grass, and it communicated itself to the timber. 

I should also like to say a word on the subject of Indian reservations. I have a herd 
of cattle over on the range on Green River. I have been stationed there for four years 
right at the mouth of White River. Now the Uintah reservation is in close proximity 
to that range, and the cattle will drift over onto it. Now, while I have got over there a 
good many herders, there are certain seasons that you cannot possibly keep the cattle 
out of the Uintah reservation. I have never had any trouble with either the agent 
or Indians ; I have always compensated the Indians by paying them for their grass, 
and we always get our cattle off as soon as possible, and there has been no trouble 
whatever. I want to make a suggestion : why would it not be advisable for the gov- 
ernment, in case the Indians are willing, to lease the portion of the reservation not 
occupied by the Indians for grazing purposes. They receive no benefit from it at all ; 
they would then reap a benefit from it, while at present they have none. 



512 PUBLIC LANDS. 

Testimony of W. K. Sloan, manufacturer of charcoal, Salt Lake City, Utah. 

W. K. Sloan. 

Resides in Salt Lake City, and has a place of business in Hilliard, Wyo., and is en- 
gaged in the manufacture of charcoal. 

He understands the present law to be that no person can lawfully take timber from 
government lands unless it be mineral land. He thinks that some law should be pro- 
vided by which timber can be lawfully taken, and that the only practicable method 
would be by a stumpage tax according to the kind of timber taken and the purposes 
for which taken. The sale of land for this purpose would not be a practical measure, 
because the timber is scanty and small in size. If persons who take timber for lumber 
were compelled to buy the right they would be a check upon the charcoal men, who 
would also be compelled to buy their privileges, paying so much per cord. The cordage 
could be readily ascertained. 

He is of the opinion that the amount of tax which could be reasonably imposed 
and collected would be 50 cents per thousand on lumber, and about 10 cents per cord 
on wood used for charcoal. A cord of wood will yield. 40 to 45 bushels of charcoal, 
worth 5 cents to 5£ cents at the charcoal furnaces. The quantity of wood yielded by 
the heaviest timber land is sometimes 50 to 60 cords per acre, but over three-fourths 
of the land the yield would not exceed 10 or 12 cords per acre. 

The destruction of timber is effected by careless hunting and fishing parties, and 
still more by Indians. If the timber rights were sold persons purchasing them would 
be at once interested in checking them ; nor would there be any serious tendency to 
strip land of all its timber, but merely to take whatever might be usefully and prop- 
erly taken. It does not pay for any purpose to take timber smaller than 6 inches in 
diameter. Smaller sizes than that are not desirable for charcoal, and would yield coal 
too fine. 



Testimony of George Stingfellow, interest in canal, Salt Lake City, Utah. 

George Stingfellow, of Salt Lake City, testified, September 15, as follows : 
I am interested in the canals south of the city, and also in the development of the 
country. 

My chief suggestions are concerning the desert-land act. I think it is a very good 
law, but a section of land is considerable, and I think one-half a section would be 
ample to give under that act. There is considerable land in this valley, and I pre- 
sume there is more elsewhere, that has been taken up under the desert-land act with 
the expectation of getting it through irrigating canals, and many of the people who 
have taken up these lands thinking they will be able to accomplish this work inside 
of three years cannot do so, and I now see that they will not be able to accomplish it. 
I have been laborin g faithfully, with a great many others in this valley ; we cannot accom- 
plish the irrigation of the land in time. We have all spent money, thousands of dollars. 
I think the law should be extended two years more, making it five years, for this reason : 
We have all taken up land and expended means with the idea that we would get it 
done within three years. The canals have taken more time and money than we 
thought. I speak of the " Draper ditch." There should be a general law extending 
the time of entry under the desert-land act, and it should be done immediately, or we 
will lose what money we have expended because of the expiration of the time. We 
are compelled to have it done, or else the time we have expended and the money — 
$50,000 to $75,000— will be lost ; and I do not think we should be deprived of both the 
land and the money because we cannot get the ditches done in time. 



Testimony of John Tiernan, John T. Lynch, and others, of Salt Lake City, Utah. 

Salt Lake City, Septenibev 13, 1879. 
To the Public Land Commission : 

Gentlemen : It would appear that to give parties as good a title to lode claims as it 
is within the power of government to do, the area of the surface ought to be increased. 
On reflection we would call your attention to what we believe will obviate, as far as 
possible, the present vexatious and complex system of the laws governing the acquisi- 
tion of lode claims. 

First. Make but one size of claim, say a parallelogram 1,000 feet in width by 1,500 



PUBLIC LANDS. 513 

feet in length, this to be the size of all claims except in cases where surveys have al- 
ready been made which prevent a locator from taking a claim as herein provided, in 
which event a claim can be made to conform to the unsurveyed surf ace, but not to con- 
tain a greater area than 1,000 by 1,500 feet, but a less area than this if such surface 
will Dot allow the full amount. 

Second. The locator shall be entitled to the vein or veins contained within such sur- 
face on their dip as far as the same shall extend in depth. 

Third. The eud lines of claims to extend down vertically. 

Fourth. If the party making such location alleges that he has a mineral location, it 
shall be considered that such is the fact. 

Fifth. When such location is made the locator shall place corner posts and notice on 
the claim, and then file his location notice and statement in the local land office within 
the district where his claim is situated, for which he shall pay a fee of $5. 

Sixth. When such filing has been complied with it shall then be the duty of the 
register and receiver of said land office to cause a survey to be made within ninety 
days, the cost of such survey to be paid by applicant. 

Seventh. The applicant shall have twelve months from the date of the approval of 
the survey in which to pay the government price for the area of such claim, and shall 
be allowed the amount already paid for survey as payment toward area. 

Eighth. If at the expiration of the twelve months aforesaid such applicant shall 
fail in which to pay the same, then the said location shall revert to the government. 

Ninth. In the event of any such reverting to the government, then the same shall 
be open for entry by any person who will pay for the survey again, and such applicant 
shall then have twelve months from the date of snch payment in which to pay the 
government for the same. 

Tenth. Further, such rule to be continued until such claim is disposed of by the gov- 
ernment. 

Eleventh. In consideration of the government granting such an area to lode claims 
the system of locating mill sites and tunnel sites should be abolished, as such have 
always been a source of annoyance and a detriment to the mining community, the said 
area being sufficiently large for any owner thereof to erect mills, &.c, and. the rule 
will equally apply to tunnel locations, the objects of which are for the discovery of 
blind lodes, &c. This method of acquiring title to lode claims and the easy manner 
in which it can be done will enable a locator to cover blind lodes with such location. 

Twelfth. In the event of the passage of such a law the cumbrous and defective sys- 
tem of district recorders and local mining laws should be abolished, the records in the 
land office being sufficient to perpetuate the title until patent issues. 

Thirteenth. If such a law can be passed, the solution of how to clear out of the way 
all old claims, which are, at best, imperfectly represented, and nearly always a stum- 
bling-block against the development of the mineral resources of the country, can be 
easily reached. 

Fourteenth. From and after the passage of such a law give all owners of lode claims 
and mill sites located prior thereto six months in which to apply to the local land 
offices for a survey of their claims and to pay for such survey, and twelve months 
thereafter in which to pay the government price for area, and at the expiration of the 
eighteen months all claims not so paid for shall revert to the government and be held 
to the rule as laid down in sections 8, 9, and 10. Therefore, in eighteen months from 
the passage and active operation of such law, the lode claims of the public domain 
will be held either by bona-fide owners or become public lands again, and in such shape 
as can be controlled by the government, the rightful owners. 

Fifteenth. It is not necessary to compel persons to do a certain amount of work on 
claims, from the fact that the survey required to be paid for by locators is better than 
to require labor to be performed, which is problematical, if in a majority of cases much 
is ever done under existing laws. 

Sixteenth. Such a law as is here contemplated allows the government to control its 
own domain at a minimum cost until it parts with the title for actual money, whereas 
by the law as it now stands persons can perpetuate their claims indefinitely, and the 
government cannot have jurisdiction of its own, neither receive pay for it — a rule con- 
trary to all business principles. 

Seventeenth. The effect of such a law will be to create confidence in mining on lode 
claims, it being a guarantee to investors and capitalists that their investments will be 
as safe from attack by contesting claimants as any ordinary business transaction. 

Eighteenth. It may be argued that, as the law does not provide for assessment labor, 
little or no labor will be performed. It must be borne in mind that the requirement 
of perfecting title is of paramount importance, and from the inception of such location 
the title is so guarded for the owner that the probabilities are that much more labor 
will be performed than under the old law, where a person is compelled to do labor or 
perjure himself on a doubtful title, as is done in a great many instances. 

Nineteenth. That all disputes or contests in regard to mining lands should be set- 

33 L c 



514 PUBLIC LANDS. 

tied before the United States land officers, the same as under the homestead and pre- 
emption laws, until patent issues. 

John Tiernan. Alexander Rogers. 

Jno. T. Lynch. Joseph G. Walker. 

L, U. COLBATH. SAML. KAHN. 

Wm. F. James. Geo. R. Ayres. 

J. E. Matthews. W. S. Godbe. 

M. K. Harkness. F. J. P. Pascal. 

B. Mackintosh. Geo. M. Scott. 

C. K. Gilchrist. G. S. Erb. 

D. H. Bentley. Edmund Wilkes. 
Anthony Godbe. S. L. Baker. 
Chas. Read. Dr. G. Spoarry. 
W. H. H, Bowers. B. W. Morgan. 
A. K. Smith. Edwd. J. Hall. 
H. W. Lawrence. Jno. M. Moore. 
John Cunnington. 



Testimony of Alexander Topence, stock raiser, Salt Lake City, Utah. 

Mr. Alexander Topence, residing at Salt Lake City, testified September 10, 1879, 
as follows : 

I have been engaged in stock raising in the northern part of Utah Territory for the 
past ten years ; since about 1869. In my portion of the country bunch-grass is the 
principal feed for cattle. I have been compelled to move my stock frequently and 
leave, and also been compelled to fence land in order to save ranges and keep other 
stock out. This has proven very advantageous to me. On the bunch-grass ranges 
you must not let the stock pasture both during winter and summer. I have a sum- ' 
mer and a winter range, and sometimes I hire a range. I do not hire the land, but I 
hire some one else to herd the cattle for me on their range. In Utah grass is very 
much limited and the principal reasons are that sheep are coming in and overstocking 
the ranges. The practice of rushing on to and overstocking a good range, when it is 
discovered, has destroyed them to a very considerable extent. That is the reason I 
went out of the cattle business. Bunch-grass is very quickly destroyed by overfeed- 
ing. If you feed on these ranges for three years, year in and year out, it will destroy 
the range. 

If you take your stock and keep them on one range in the winter and another in 
the summer, that allows the seeds of the grass to fall and does not destroy it. If the 
grass is destroyed in seed-time it is entirely destroyed, and when the range has once 
been eaten out in that way it will take five or six years before grass amounting to 
anything will grow again. I can show you ranges that used to cut a ton and a half 
of bunch-grass to the acre and which are now entirely bare, and sheep are much worse 
than cattle are on the grass. It is a common practice whenever grazers find a nice range, 
although it may be occupied by another, to rush their cattle upon it and destroy the 
range. This is a common practice. If they do not drive their cattle in among those 
already occupying it they will drive them into the vicinity, and there is no local 
agreement or understanding to protect cattle raisers. I think the practice tends to 
the destruction of the pasturage throughout the Territory, and the destruction of the 
stock interests also. 

The remedy I should propose for this state of affairs would be that the government 
should lease or let these pasturage lands that you cannot cultivate at all. There is 
very little land in the foot-hills that can be farmed, and I think the best thing to be 
done will be to lease it, say in 5 miles square, and then the government would have to 
protect those to whom it leased. I do not know whal would be a fair price to pay for 
these ranges for a term of five years. I have not figured upon that. It would take 5 
acres to each animal. As far as my means of determining, approximately, the land 
necessary to pasture a head of stock goes, I think it would take 2, 3, and 4 acres of 
bunch-grass to each animal ; that is, when you first turn in your cattle upon a new 
range. I do not think you would feed a range down by having 4 acres to the animal. 

As regards the altitude for stock ranges, for small ranges, the higher we can go the 
better it is. Cattle do best on the highest peaks in summer, but you cannot do any- 
thing on the mountains in winter; then you drive them into the valleys. 

If the government should find the leasing of lands to be inconvenient and objec- 
tionable, I cannot suggest any other method of disposing of its pasturage lands unless 
the land were sold for some price that stock-raisers could afford to pay. I think that 
stock-raisers could generally afford to buy considerable tracts of land, and that some 
men would purchase such tracts at 25 cents per acre. A man could afford to buy at 



PUBLIC LANDS 515 

that price. I would rather buy at that price than graze it as it is. I would then fence 
it. We use this wire-fencing, as we have very little timber. That is the great diffi- 
culty in this country ; there is no timber to speak of. 

As regards the number of herders required to take care of 1,000 head of cattle, 
it is altogether owing to the locality in which you are. If you are in a secluded val- 
ley with 2,000 cattle, all you want is a man and a boy, because one man does not want 
to stay alone. In the branding season, however, you want more. You generally watch 
your herds in such a manner as to be sure that no cattle, except now and then perhaps 
one, stray away from your lands. We keep herders on certain ranges that I have busy 
with the cattle, and if there are any cattle going out they follow and drive them back. 

As a general thing we keep our cattle pretty well rounded up, and try to guard 
them from going off the range. We lose a great many cattle by poisoning in the 
spring. There is a weed that grows in the spring that poisons them. We call it sea- 
kale ; and then we have the wild parsnip, which is also poisonous to them. We past- 
ure our cattle high up in the summer and drive them down in winter. I think it 
would be a very good thing if these lands were opened up to private entry at a low 
price, and that the wants of the stock raisers would be met in this way to some ex- 
tent. The price should not exceed 25 or 50 cents an acre, and then I think the lands 
should be classified. A man had better buy it and be protected than allow his cattle 
to go as they do now. If you have a permanent range, the stock raised there will re- 
main; but if you have to move often, owing to the encroachment of some other per- 
sons, then it takes horses and men and costs a great deal of expense, and therefore I 
would rather have a range that I owned. 

Horses and tattle will soon become attached to a range, and I have known horses to 
go a hundred miles in forty-eight hours to get back to their old range. The changing 
of a range entails considerable loss, for it makes your cattle poor through driving, and 
to move the cattle it requires additional horses, herders, &c, and also to keep them on 
the new range until they have become familiar with it. 

If I were enabled to acquire some sort of possessory title I would be able to raise 
grass for my stock. I have been raising some grass ; but unless you have water you 
cannot do anything. It will pay stock raisers to raise grass if they have the water. 
Tame grasses, like timothy, blue-top, &c, get ripe enough in this country to make hay 
about the 1st of July. Wheat would be ripe to cut in the same locality about the same 
time ; they have cut wheat here in June, especially if it be a dry season : this year 
wheat was cut as early as the 10th of June. Wheat and grass generally go together. 

In irrigating tame grasses it is not necessary to use the water at the same time it is 
for grain. Here we generally turn the water on in winter and allow it to freeze ; you 
cannot injure the grass then. In this way we avoid irrigating in summer. In such 
streams as Snake and Bear Rivers, and others of that character, we have the highest 
water about the 1st of June ; that is just about when we want it. The waters of the 
Malad are highest about the 1st of May. If there were large farms for raising hay and 
for pasturage purposes by irrigation, 1 don't think the irrigation of the grasses would 
interfere with the use of the water for agricultural purposes. You can irrigate your 
grass in winter, and when the crops require irrigation the grass no longer needs it. We 
have either got to have land pass into private ownership in large tracts, so that there 
will be some encouragement to raise tame grasses in order to winter the stock, and in 
that way increase the stock interests of the country, or else we cannot carry on 
stock-raising hereafter. My idea is that unless artificial means are provided for sup- 
plying grass the stock-raising interests of this portion of the country must go down. 
It is going down all the time now, and there is no hope of artificial improvements by 
private parties unless they own the ground. 

Question. I understand your idea to be, that the stock-raising interests of Utah will 
be utterly destroyed by the grass being eaten out, and it is eaten out, because other 
men have come in upon men's ranges and overstocked them ; and in order to remove 
these fellows, you think it is necessary that some means should be provided by which 
an individual should be enabled to secure his occupancy of a range ? — Answer. Yes, sir, 
I do ; and I think that under such a system as that the stock-raising interests of Ufca.li 
would be very much promoted, and that it would be an encouragement to the raising 
of tame grasses, and in no other way can the stock-raising interests of Utah be built 
up. If a man is not protected in the use of a range, everybody's cattle have the same 
right that he has. It is absurd for a man to make five or six thousand dollars' worth 
of improvements for the use of somebody else. Selling men the land and protecting 
them will enable them to raise tame grasses. 

Q. Are all, or nearly all, the valuable pasturage lands taken up and fenced, under 
the Territorial law of Utah ? — A. No, sir ; not one-sixteenth. I believe there was such 
a law passed by the legislature. If a man could buy this land for a small sum, and go 
to work and put up artesian wells and fence the land that such wells would cover with 
water, it would pay them. Suppose I go and sink an artesian well, sometimes 100 feet 
or more, capable of watering 1,000 head of cattle ; some one else comes up, turns his 



516 PUBLIC LANDS. 

cattle loose, and they go right to my well. You cannot move his cattle, because he 
says you don't own the land any more than he does. 

Q. Have you any flowing wells here ?— A. We have a few. There are eight at Grant- 
ville. The depth of them is 175 feet. They have irrigated 200 acres by means of them. 
They were sunk last year; they are 200 miles north of here and cost $1.50 a foot with- 
out pipe, and 50 cents a foot more for the piping. 

Cattle are worth about $14 per head here taking it all through. That is not im- 
proved stock. They are what we call Utah stock. But now they are bringing in many 
fine bulls. If the ranges were owned by the persons who own the stock that would, 
tend to improve the stock. I am improving stock now ; I have a bull worth $1,500 ; I 
have him fenced; it would be foolish to improve stock when it is among somebody else's. 
The altitude of my range, which is in Idaho, is about 5,500 feet. 

Montana is a good stock country, but it is getting fed off just like this country. 

The trouble of the government selling off these pasturage lands, even if they increase 
the number of acres so that a man could take his family and settle upon his homestead, 
is that it would not reach the cattle men. You take a man who goes into the cattle 
business ; he does not want to be limited to a few acres. Still I think it would be a 
very good, idea to divide this land into pasturage homesteads at reduced prices. And 
I should say that in order to make the plan at all successful it would require 2,500 
acres for each homestead. It would take at least 10 acres to the animal, but it is hard 
to say how many cattle could be supported on 2,500 acres of average grazing land. 

Sometimes you will find 500 acres of land with not a spear of grass upon it. Then 
again there are 500 acres that are pretty good grazing land. I think that a man who 
had 150 cows could, with close economy, support a small family— say, a wife and three 
children — that is, if he sits down, takes care of his stock, and fences and raises a few 
vegetables, he might be able to live. He could sell, if he had good luck, 50 steers each 
year. 

Q. If your theory is correct, and if 150 head will support, with economy, a small fam- 
ily, and 10 acres of average land would support a steer, that would make about 1,500 
acres which would be absolutely necessary for a pasturage homestead ?— A. Yes, sir ; 
1,000 or 2,000 acres. I have seen land, though, that would not do any such thing. 
And then again I have seen land 4 acres of which will support a beef, if it is fenced. 
I consider it desirable to have bunch-grass land. 

There are some sheep in this country. If a sheep man comes on your range with 
his sheep and you can manage to bluff him off and get him away, all right ; but 
if you do not, they will ruin your range. If these lands were sold and fenced it would 
prevent all this trouble ; otherwise, it is the public domain, and every man can range 
where he pleases. 

I have taken up some land in Idaho under the desert-land act. I am carrying a 
ditch to it which costs $1,600. This land was taken up under the desert-land law at 
25 cents per acre. Now, unless I can prove up on my land next year — I mean that to 
which I am carrying an irrigating ditch — I will have to lose it. I am doing this in 
company with other men, but I myself have expended this much money. But we can- 
not get the water in the ditch this year, and if we do not we must lose it, because we 
will not have complied with the law. We would produce nothing until we got the 
water upon the land. I think there should be an extension of time to allow us to get 
the water on the land. 



Suggestions of Edward B. Wilder, James F. Bradley, S. B. Dickson, W. H. H. Bmvers, and 
Prof. J. H. Morton, at Salt Lake City, Utah. 

Salt Lake City, September 10, 1879. 

Dear Sir: Owing to a pressure of business, I find that it will be out of my power 
to confer with the commissioners, Hon. J. A. Williamson and others, in this city rela- 
tive to a revision of the mining laws as they now exist, and, by simplifying the same 
be the means of effectually putting a stop to litigation that is proving most disastrous 
by capitalists to the miner of limited means. 

The suggestions as made by Mr. Burgess to the gentlemen comprising said Commis- 
sion I most cheerfully concur in, and having been engaged in mining, engineering, 
and surveying in Cuba where the Spanish laws relative to mines and mining claims 
predominate, viz, permitting the locator to locate 100 varas by 200 (or, in round num- 
bers, 300 by 600 feet) as a mining claim, within which boundaries he is confined to 
vertical lines extending downward, irrespective of the vein in its dip passing out of 
said bounds. 

I therefore beg leave to present the commissioners the following : Cause each min- 
eral location hereafter to be made 500 feet wide by 1,000 feet long whose veins shall 
be confined within said boundaries by vertical lines extending downward from the 
side and end lines of such location to an indefinite depth, giving such locator the 



PUBLIC LANDS. 517 

privilege to locate adjoining his first location a series of additional locations of simi- 
lar dimensions, not to exceed three in number. By pursuing such course it will here- 
after put a stop to litigation and perjury so common in our courts in Utah, by pre- 
venting a parcel of unmitigated scoundrels from purchasing abandoned claims for no 
other object in view than to swing them over the claims of honest men. 

Also, by the decision of the Acting Commissioner, Mr. Armstrong, the claimant of a 
nrine must be the person to make affidavit that the notice of application for patent 
and diagram remained posted the sixty consecutive days. No agent, attorney, or other 
party can do this according to this decision, as in the case of the Saratoga mining 
claim, in West Mountain mining district, where the claimants, residing in Saint Louis, 
had their appointed legal officer to act for them. 

Would it not be better to allow two disinterested parties (cognizant of the fact 
that such notice was posted and remained the sixty days required by law) to make 
such affidavit in place of the claimant ? The owners of a mining claim may be in 
Europe or elsewhere, and if any one can sign such affidavit, it must injustice be done 
by parties, on the ground who know the posting to have been done for the period 
designated. 

I am, respectfully, yours, 

EDWARD B. WILDER, 
Mining Engineer and United States Deputy Mineral Surveyor. 

Col. C. L. Stevenson. 



ions of Prof. J. R. Morion. 

In making a location allow the locator to make his location 1,500 or 1,000 feet square, 
and he to be thereafter confined to the mineral within the vertical boundaries of his 
claim ; have his claim defined by posts on each corner ; compel him to do his assess- 
ment work in the beginning of every year, the year to commence on the 1st day of 
June in every year ; have the work certified to under oath before the recorder. 

In recording have the records made within the district, the district recorder to for- 
ward to the register of the land office a certified copy of the notice of location, to be 
entered in a book kept by the register of the land office. 

Give the locator five years in which to obtain a patent. 

In making a relocation of a claim the party making the relocation shall give the 
name of the claim he wishes to relocate, and if the recorder shall find that the claim 
has not been worked according to law, he shall enter the notice ; if the work has 
been done, the application shall be refused. 

J. H. MORTON. 



Suggestions of James F. Bradley, mine owner. 

1. Amend the present law by allowing, say, two months from date of location of 
mineral claim, within which time the locator may ascertain the course of the vein and 
make his side lines correspond with the strike of the vein. 

2. Secure by formal enactment to the locator of a mineral claim the right (absolute) 
to the control and use of all springs and running water within the boundaries of his 
claim, and which have not been actually appropriated for practical purposes prior to 
his location. 

3. Guarantee in terms the right of the locator of a mineral claim to a mill-site with 
water privileges (made in connection with said mineral claim) so long as the claim is 
worked in good faith, without requiring any improvement or outlay on the mill-site 
or water privileges as a condition of possessory right. 

JAMES F. BRADLEY, 

Mine Owner. 



TENURE OF WATER-RIGHTS— LAWS AND DECISIONS COLLATED TO DETERMINE THE POINT. 

Second in value to the mines of our mineral districts are the mill-sites and water 
rights adjacent or contiguous thereto. Conflicting opinions and threatened litiga- 
tion make it desirable that our mining fraternity should be well informed as to their 
rights under the law in connection with this species of property. Previous to the 
passage of the United States mining law of 1866, when the unsurveyed and unclaimed 
mineral lands of the Pacific slope were open to any and all prospectors, it was found 
necessary, in order to work the phtcer mines, that water should be diverted from its 
natural channels and brought in many cases long distances and at large expense to 



518 PUBLIC LANDS. 

the points where it could be utilized in washing out gold. Justice demanded and 
local laws and customs of miners, sustained by decisions of the courts, sanctioned and 
protected the rights of parties who first appropriated the water thus running to waste. 
The law of 1866 did not create or enlarge the rights thus accorded, but simply recog- 
nized and guaranteed them as just and necessary under the peculiar circumstances. 

The common-law doctrine that water cannot be diverted from its natural channel 
to the detriment of those who use the water and live on or own the land through 
which the stream runs, might well be ignored under the state of things indicated, for 
no one lived on or owned the land in question. And so, to a certain extent, this com- 
mon-law principle was set aside in the cases named. But, while the right of prior pos- 
session and appropriation of water was thus recognized, the courts have held, in the 
language of the supreme court of Nevada, in the case of Van Sickle vs. Haines (7 Nevada, 
249), "that a patent to land from the United States passes to the patentee the unin- 
cumbered fee of the soil, with all its incidents and appurtenances, among which is the 
right to the benefit of all streams of water which naturally flow through it ; * * * 
and also the same right to recover for a diversion of it as the United States or any 
other absolute owner could have. That the right of the riparian proprietor does not 
depend upon the appropriation of the water by him for any special purpose, but that . 
it is a right incident to his ownership in the land to have the water flow in its natural 
course and condition, subject only to those changes which may be occasioned by such 
use by the proprietors above him as the law permits them to make of it, and that the 
common law was the law of the State and must prevail in all cases wliere the right to 
water is based upon the absolute ownership of the soil." 

The case was carefully distinguished from that large class of cases where it had been 
held in California and Nevada that priority of appropriation gave a right to water as 
between appropriators none of whom held the absolute title to the soil. 

As it must be conceded that the absolute right of ownership conveyed by patent 
reaches back and includes the incipient steps required under the mining laws to obtain 
possessory rights, it follows that the locator who in good faith has located and improved 
a mining claim has the right to the use of springs and running water thereon unless 
the same has been appropriated previous to his location and improvement. And this 
right is inferentially admitted in the case of Leigh Co. vs. Independent Ditch Co. (8 
Cal. 323), where the court held that "a complaint alleging that the plaintiffs are the 
owners and in possession of certain mining claims on a certain stream, and are entitled 
to the natural flow of the water of the streams, which have been diverted to their in- 
jury by defendants, «et forth a sufficient cause of action. It is not necessary that the 
complaint should further allege an appropriation of the water or an ownership thereof." 
And in 6 Cal. 105, it is declared that "possession or actual appropriation must be the 
test of priority in claims to the use of water, whenever such claims are not dependent 
on the ownership of the land through which the water flows." 

" A stream is parcel of the land through which it flows inseparably annexed to the 
soil, and the use of it as an incident passes to the patentee." (2, Law, C. C. 176.) 

Under the mining law of 1872, water privileges or mill-sites are located in the same 
manner as mines, subject to local regulation, that is by definitely locating not to exceed 
five acres by monuments and recording location notices with the district or county 
recorders. 

No immediate improvement is required, and no limitation of time is given when the 
right to use and improve them shall expire. Indeed, as " reason is the life of law," 
there is good reason why there should be no limitation. The presumption of the law 
is that the mill-site waits upon the slow and expensive process of opening and develop- 
ing the mine or mines to which it is but an adjunct. 

When themineis patented, the mill-site may be included in the application and patent- 
ed also without one dollar of improvement on it, be it one year or ten after its location. 
In the absence of statutory law and of any rule or custom of miners in this Territory, 
the laws of the United States as construed in the courts of the mining States and Ter- 
ritories govern and settle the question of water rights, as follows : 

1st. The lawful owner of a mining claim, patented or otherwise, has the right to use 
the water passing through his claim, and can recover against anyone diverting it from 
its natural channel, unless it can be shown that the party so diverting it had by pos- 
session and appropriation, prior to the location of said mining claim, a better right 
thereto. 

2d. Mill-sites properly located and recorded, although unpatented, hold good under 
the laws so long as the locator, his heirs, grantors, or assigns own or work the mine or 
mines in connection with which the mill-site was selected and recorded, and a cause 
of action arises against any outside party who attempts to divert the water running 
through said mill-site. 



PUBLIC LANDS- 519 

Suggestions of S. B. Dickson, Salt Lake City, Utah. 

Salt Lake City, Utah, September 11, 1879. 

Manner dtf making and recording mining claims. 

Persons intending to make a location should be required to post upon the ground a 
notice declaratory of their intention, which notice should in a general way describe 
the direction and extent of the claim, a copy of such notice to be left with the dis- 
trict recorder, who shall indorse upon the back thereof the day and hour which they 
received the notice. Sixty days should then be given the party to prospect his dis- 
covery and determine the course of the lode and to have the same surveyed by an en- 
gineer, who should be required to stake said claim, giving courses and distances, and 
upon his notice of location to mark the same together with a plat thereof, which 
notice so made with the plat thereof shall be recorded with the district recorder. 

Manner of working assessment. 

Claim owners should be required annually to appear before the district recorder and 
there, by two competent and disinterested witnesses, make oath that they have per- 
formed said assessment work ; and it should be made the duty of the recorder to make 
record of such work. Neglect on the part of the claim owner or their agent to annu- 
ally make the above affirmation shall work a forfeiture in the claim and render it 
subject to relocation. 

The recorder should be debarred from recording a notice of relocation upon a claim 
if his records show that the work has been annually performed. District recorders 
should be government officers, authorized to administer oaths, and should at stated 
periods be required to make returns to the surveyor-general's office of the Territory of 
all recorded claims and likewise of all forfeited claims. 

All patented claims in Territories should be taxed annually $10 for road purposes in 
said district. 

S. R. DICKSON. 



Suggestions of W. R. H. Bowers, mechanical engineer, Salt Lake City, Utah. 

Salt Lake City, Utah, September 11, 1879. 

Dear Sir : At your request, I submit the following suggestions in substance that I 
think would be an improvement in our present mining laws. It has no reference to 
any particular system of surveys, but refers to manner of making and completing a 
mining location ; and if deemed of importance, would be well to lay the matter before 
the honorable Commission now in our city. 

The point I wish \o call attention to is to the fact that in many mining districts 
throughout the Western States and Territories there is considerable trouble aris- 
ing from conflicts in location of mining claims, and the fact is the records in mining 
districts do not fully describe a location so that a correct knowledge of conflicting 
claims can be determined or located by an examination of said records. It has occurred 
to me that this trouble could be obviated by requiring each locator to have his claim 
surveyed by a regular United States mineral surveyor, say within sixty or ninety days 
after posting such notice of his location. The same to be platted in the district re- 
corder's office and the proper returns made of said survey to the surveyor-general. A 
failure of such locator to have his claim surveyed and properly platted and recorded 
within the time specified should be a forfeiture of his claim. 

All claims located prior to 1872 and subsequent to that date should be surveyed, 
&c, as above within ninety days after such law became of force. 

As a means of preventing any oppression on the locator, I would suggest that the 
first year's assessment of $100 be abated, and that the locator should be entitled to his 
patent by doing $400 worth of work on each claim ; that the original survey should 
be final, and locator to be required to prove up his work to entitle him to an applica- 
tion and. entry by paying the usual land-office fees and price of land so surveyed. 

The effect would be security to investors in mining claims who are not familiar with 
the locality as to conflicting claims. It would also insure a rapid purchase of such 
claims from the government of all mineral lands located. 

Under present system parties will hold claim after thousands of dollars have been 
expended in development to save the expense of surveys, and the government not 
receive a cent. 

Under present system parties not familiar with location and conflicting titles find, 
after spending large sums in developing, that an adverse claim has the precedence, 



520 PUBLIC LANDS. 

and the result is innumerable lawsuits and annoyances that deter legitimate capital 
from investing in mines and mining enterprises ; from their past experience or observa- 
tion of others they see themselves robbed, so to speak, of what they really think their 
rights, but in fact caused by the imperfection of our laws mentioned. 

This alone has had a greater and more damaging influence to development of our 
'mineral resources than any other case. Men say if they have a good mine they are 
robbed of it by some old title that was overlooked in records or so imperfectly de- 
scribed as to guard them. If platted and described, it could be more readily detected. 

It is not necessary to refer to any special case, but you are no doubt aware that 
hundreds of such cases have and do now exist in Utah. The records of our courts also 
substantiate this trouble. 

As no one feels a greater interest in the development of our mineral resources than 
I do, I would be glad to see some law passed that would prevent such conflicts and 
insecurity to investors, and hope this or some better plan may be adopted speedily by 
Congress in amending our mining laws. 
Eespectfully, yours, 

W. H. H. BOWERS, 

Mechanical Engineer. 

Col. Chas. L. Stevenson, 

Mining Engineer. 



Suggestions of E. B. Wilder, Edward Wilkes, Lewis J. Holines, Joseph GorlinsTci, Thomas E. 
Bailey, and Charles L. Stevenson, committee of civil and mining engineers, Salt Lake City, 
Utah. 

Salt Lake City, Utah, September 11, 1879. 
To the United States Land Commission at Salt Lake City, Utah : 

Gentlemen : We transmit herewith a digest of the suggestions offered at a meeting 
of civil and mining engineers of Utah concerning a modification of our mining laws 
and the instructions thereunder. 

E. B. WILDER, 
EDMUND WILKES, 
LEWIS J. HOHNES, 
JOSEPH GORLINSKI, 
THOMAS E. BAILEY, 
CHARLES L. STEVENSON, 
Committee Civil and Mining Engineers of Utah. 



Suggestions made at a meeting of civil and mining engineers, Salt Lake City, Utah. 

Mineral monuments and meridian line or lines in each district. A proper base line 
also between two of the principal monuments, established at government expense. 

District recorders to be elected by a vote of mine owners, as heretofore. Such 
recorders to furnish the United States with a proper bond for faithful performance of 
duties ; such bond "to be satisfactory to the survey or- general of fche Territory. 

When a notice of location is made in the district records, a certified copy to be also 
immediately filed with the surveyor-general. And quere : Whether a full copy of past 
records should not be filed with surveyor-general ? 

All relocations should be recorded as such, and the name of the original claim given, 
or otherwise to be void. 

Upon unpatented claims oath should be made by the owners or their agents and two 
witnesses, before the recorder, that the yearly assessment work has been done, and such 
statement be placed on record, and in that case the recorder should be obliged to refuse 
the recording of a relocation, and so prevent expensive litigation. 

Quere : Whether local laws should or should not abridge the width allowed by the 
United States law? 

Quere : Old Spanish law redivivus as to surface locations ? 

United States deputy surveyors should have the privilege to swear their assistants 
in and out. The surveyors often have to travel great distances to find the office of a 
notary or a justice, and then on arrival find the officer absent, the costs incurred in 
some instances equaling the cosC of survey. ( Vide instructions November 20, 1873.) 

Owners of claims made prior to 1872 should be obliged to amend notice of location 
by official survey, stating clearly course and position of the lode or vein, and mark 
their boundaries distinctly on the ground, it being understood that the amended notice 
does not interfere with their prior rights. 

Quere : Whether parallel end lines are essential ? 



PUBLIC LANDS. 521 

The number of each, mining claim officially surveyed should be on record with, and 
the deputy mineral surveyors shall give the same to, the district recorder. 
Appointment of a mining inspector to look after the safety of mines and miners. 
Surveyor-general to have power to restrict the number of deputy surveyors. 

EDWARD B. WILDER. 

EDMUND WILKES. 

LEWIS J. HOHNES. 

JOSEPH GORLINSKI. 

THOMAS E. BAILEY. 

CHARLES L. STEVENSON. 



Testimony of Edward B. Wilder, United States deputy mineral surveyor, Salt Lake City. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1. 

To the honorable Commissioners of Public Land Commission : 

Gentlemen : I have the honor to present for your consideration the following an- 
swers, replying to a portion of the interrogatories propounded in the circular issued 
by your honorable bodv, viz : 

Name, Edward B. Wilder ; residence, Salt Lake City ; occupation, mining engineer 
and United States deputy mineral surveyor. 

On the subject of lode claims I would respectfully suggest in connection with the 
interrogatories the following : 

1. Thirty-nine years, of which seven years were in the Cuba mines, Island of Cuba, 
as superintendent and mining engineer, and the remaining thirty-two years in dif- 
ferent sections of the United States, including three years as superintendent, mining 
engineer, and mining expert of the Ophir mine, on the Comstock lode, State of Ne- 
vada ; as also seven years of the above period in this Territory as mining engineer and 
United States deputy mineral surveyor. 

2. I find many defects, in which my subsequent replies will explain. 

3. The present official practice has fully demonstrated the practice to be erroneous, 
inasmuch as it is productive of litigation. If all surveys hereafter to be made were in 
the form of a parallelogram there would be very few adverse claims— say 500 by 1,000 
feet, or, as the present law now stands, 1,500 by 600 feet. 

4. The top or apex of a vein or lode is the point at surface where the ore is met with, 
either superficially seen in the croppings or just beneath the surface. The terms I 
consider vague, inasmuch as denudation would have a tendency in a soil free from im- 
pediments, as rocks, &c, to expose the ores lying some distance beneath the surface, 
thus opening a field for difficulties in the future, while perhaps the legitimate apex 
would be considered as at the outcrop of the vein ; and there are very few excep- 
tions but what, after sinking a few feet, the dip and course can be determined suffi- 
ciently to make a survey of the location. The Ophir mine was an exception as regards 
the dip, for in the first developments made the dip was west, and after an incline shaft 
had been sunk on the vein for over 200 feet a cross-cut was driven from the bottom 
over 150 feet east, when the walls were found ; the hanging wall in the first instance 
became the foot wall, and has continued as such for over 2,500 feet in depth. 

6. It has most decidedly, as in the case now before the courts of the Stewart min- 
ing claim against the Edison, when the so-termed apex was found on each claim ; the 
result being that the claims being contiguous in part, the foot wall of the Stewart 
crosses the side line of the Edison diagonally, and hence the expensive litigation now 
in progress. 

7. The Stewart and Edison veins, which are formed separate by an intervening mass 
of country or barren rocks between the two, are as follows : Edison foot wall, N. 5° 
45' E. ; Stewart hanging wall, N. 33° E. In the lines of divergence from a point on 
the Stewart country rock exists between the wall of one and that of the other. 

9. They occasionally occur wider than the local laws allow, but very rarely, and in 
no instance coming under my own observation do they exceed 500 feet in width. 

10. They do. 

11. It works to the disadvantage of the discoverer of a true vein. 

12. In Uintah district is the following : Swift locates a claim ; subsequently Evans 
makes a location from certain infallible proofs and sinks a shaft on the vein ; has a 
survey made for United States patents ; Swift then has a survey made which absorb* 
nearly all of Evans's claim ; sinks a shaft 80 feet deep in limestone (while Evans is on 
the vein) from his discovery, and intends filing a protest against Evans. 

13. In almost all cases of litigation the causes assigned are when the vein passes the 
exterior lines of the surface tract diagonally or otherwise. 



522 PUBLIC 'LANDS. 

14. I do not think it possible that they can without litigation. 

15. I have never taken part, directly or otherwise, in organizing a mining district. 

16. The general mode of taking up and locating a mineral claim is as follows : One 
or more individuals start out with pick and shovel ; if there are rich mines in the vi- 
cinity they generally commence an examination, taking in many instances the general 
course of the vein as seen on other productive properties. When anything indicative 
of an outcrop is seen a foot or two is sunk; if they think it promising, a notice is writ- 
ten with pencil, a mound of stones erected, and that constitutes their right to the 
claim. In other instances locations are made adjoining good mines without there being 
the least indication of an outcrop, the motive being to eventually " blackmail" the 

- adjoining mines. Again, most of the locations are made without any direction, simply 
inserting the course northerly and southerly for north and south, &c, thus leaving a 
margin at the option of the surveyor to swing on. 

17. If the original notice of location is amended as regards course and distance, it 
destroys the former date of same, and the date of such amendment takes precedence. 

18. From my own personal knowledge I am not aware of any, but I am informed 
that accusations of that nature have been made by parties. 

19. I would most respectfully suggest that all mining-district laws, customs, and 
regulations as they now exist be abolished, and all future locations and the initiation 
of record title be placed exclusively with the United States land officers, their charges 
being excessive (and are too often under the influence of disreputable parties), giving 
no bonds, and in fact exercising a baneful influence. 

20. The present system of allowing the courts to adjudicate on adverse claims is 
highly detrimental not only to the litigants but to the government, as it places a bar- 
rier to disposing of the mineral lands at once, to say nothing of delays and the great 
expense attending the same. I therefore am of the opinion that all controversies con- 
cerning mineral lands should be left to the United States land officers, in the same 
manner as contests under all other land laws, with no appeal from their decision ex- 
cept to the Land Office at Washington. 

21. I would suggest that the leading features of the act of May 10, 1872, be in a 
measure retained ; that all claims hereafter made should be in the form of a parallelo- 
gram, beyond the end lines of which the vein cannot be disturbed by entering another 
claim ; or, in other words, let vertical lines from the surface of such parallelogram con- 
stitute the claim downward, and in case the dip of the vein should pass out of the vertical 
lines, let the owner take up as many claims as may be deemed expedient adjoining, in 
order to protect the dip of his vein. In other words, an embodiment of the old Spanish 
mining laws in our present mining laws, after reconstruction, will put an end to this 
course of litigation that is ruining thousands. 

22. There ought to be a limitation as to possessory title under the mineral laws, from 
the fact that there have been taken up locations by parties long prior to the act of May 
10, 1872, who, in fact, hold them to the exclusion of others that would develop them. 
Many of these locations are made in the vicinity of good mines, with no other motive 
than to protect the rights of legitimate mine owners, and eventually sell out, as par- 
ties holding good properties would rather submit to " blackmail" than be involved in 
litigation. The mining districts are full of such cases. 

In reference to question No. 2, I would say that the principal defects in the United 
States mining laws are in regard to permitting the owner of a mining claim to follow 
the dip of his vein outside of his claim, as indicated by his boundaries superficially, 
which, as before stated, is the inevitable step to litigation. As an instance : the Stew- 
art Company in West Mountain mining district owns a claim, purchased, being an old 
location unpatented, 200 feet wide. From the northern side line of this location to the 
south side line of another good mine is a distance of 370 feet. This last claim has made 
application for United States patent. The former claim, owned by the Stewart Com- 
pany, filed an adverse claim on the ground that the dip of their purchased claim passed 
into the claim of the latter, passing through 370 feet unclaimed by their location and 
undeveloped. 

I am very respectfully, your obedient servant, 

EDWARD B. WILDER. 

Salt Lake City, October 15, 1879. 



Testimony of Edward Eldridge, farmer, Whatcom, Wash. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1. 

Whatcom, Wash., October 20, 1879. 
To the members of the Public Land Commission : 

Gentlemen : In response to a circular addressed to me submitting a number of 
questions, under different heads, relative to the disposal of the public lands, answers 



PUBLIC LANDS. 523 

to which are requested so far as my experience or knowledge extends, I take pleasure 
in answering such questions as come within the range of my observation, and also 
submitting a few ideas for your consideration. 

1. Edward Eldridge, Whatcom ; a farmer, formerly a sailor. 

2. I have lived here twenty-six and one-half years. 

3. I acquired title to 320 acres of land under the donation law, one-half to me, one- 
half to my wife. I have purchased for various persons land by private entry at $1.25 
per acre. 

5. I will not refer to this, as others more conversant with it will answer better than 
I can. 

6. I have observed defects in the practical operation of the land laws, and this 
neighborhood is suffering from these defects. In this vicinity about 60,000 acres of 
land is owned by non-residents. The land bordering on about 50 miles of shore line 
was surveyed at an early day and placed in the market nearly 20 years ago, and was 
all purchased by speculators during a railroad excitement. A large portion of the 
land immediately behind this, not being in the market, was squatted oh and a pre- 
emption right proved up, and by the squatters swearing for each other, paying for 
the land, and then leaving, and to-day not one of those claims out of a dozen shows 
any signs that any improvement had ever been made; consequently, with the excep- 
tion of a few front claims occupied by the early settlers under the donation law, you 
must go back through the woods from 5 to 10 miles before you come to a settler. The 
suggestions I would offer as a remedy I will give hereafter. 

7. The conformation of the lands in this county and all of Western Washington is 
mountainous, embracing every form given to the surface of the earth, some places be- 
ing too precipitous for traversing, some gradually sloping, some beautiful table-lands, 
and some rich valleys and river bottoms. There is a larger percentage of rich agri- 
cultural! and in this county than in any other in the Territory proportionately to its 
size ; all that is not fit for agriculture is excellent for pasture for one class of animals 
or another. Coal exists to a large extent in this county and generally throughout 
Western Washington, and upward of 90 per cent, of the land in this county is timber 
land. 

8. I do not think the character of land could be classified by a general rule, 
nor yet by geographical divisions, but each local land district could classify their lands 
from the explorations of the land surveyors. 

9 and 10. I will embrace in my ideas at the close of this. 

AGRICULTURE. 

1. The climate here approximates that of the south of England more than any other ; 
it is more equable than any other portion of this continent, and for a salubrious, genial, 
healthy atmosphere it is not surpassed by any place on earth ; twenty-six years 7 expe- 
rience by one who has been in every quarter of the globe proves this to me, but for the 
benefit of those unacquainted with the motions of winds and ocean currents, and who 
would feel an interest in knowing where a genial, healthy climate exists, I will give 
the causes. Water refracts the rays of the sun, the earth absorbs them, hence in the 
hot season it is much warmer at any given latitude in the middle of a continent than 
it is in the middle of an ocean at the same latitude. Fresh water freezes quicker than 
salt water, and snow and ice accumulate on land much more than on the ocean in the 
same latitude, and keep the temperature of the a tmosphere lower in winter on land 
than it is at sea. Another natural law causes the wind to blow from the west in high 
latitudes more than from any other quarter ; it therefore follows that winds blowing 
across an ocean carry a warmer volume of air Jin winter and a cooler volume in sum- 
mer than winds blowing across a continent. This is the main cause why it is warmer 
in winter and cooler in summer on the west coast of America and of Europe than it is 
on the east coast of America and Asia at any given point of latitude above 45°. The 
ocean currents aid this action of the winds, and although the coast of Europe is 
favored more by ocean currents than the west coast of America, that is counterbal- 
anced by the monsoons of the Pacific, which greatly favor the west coast of America. 
On this coast the winds nearly always blow from the south during winter, giving us 
a mild atmosphere, with copious rains ; and in summer the wind blows from the north, 
bringing with it a cool, healthy, invigorating atmosphere. It is the opposite on the 
Asiatic coast. 

Again, an immense chain of lofty mountains traverses the whole continent of Amer- 
ica parallel with and but a short distance from the western coast, against which the 
winds from each side strike and produce a greater difference between the atmospheres 
on each side than would be produced by the distance of 1,000 miles toward the interior 
of a level continent. This causes our genial climate. 

The rainfall here is sufficient for all purposes of agriculture. We generally have 
rain every month in the year except July, August, and September, and sometimes every 
month. This year it has rained every month. 



524 PUBLIC LANDS. 

Our seasons here may be called all the year round. I sow cabbage-seed in Septem- 
ber and transplant in March, and not over one winter in ten will the plants need cov- 
ering during the winter. With the exception of unusual storms, a man can work out 
of doors all the year round. The average fall of snow for twenty-six winters I will 
call 6 inches, and lies about a week. One winter we had snow for four months. Two 
winters I neither saw ice nor snow. 

2 to 11, inclusive, is answered by saying that the clouds sufficiently irrigate Western 
Washington. 

12. In Western Washington there is no land but can be used for other purposes than 
pasturage. It is valuable for timber or some kind of mineral or coal or stone. 
' 13, 14, 15, require no answer. 

16. In this section no one relies solely on raising cattle. 

17. In this county I do not think there are over 3 head to the square mile. 

18. There was no grass in the woods. All the pasture we have has been propagated; 
but when once started this is the finest pasture land in the world, the grass and clover 
being green all the year round and the timber affording shelter from storms in winter 
and from the sun in summer. The cattle spreads the pasture by the seeds passing 
through them. 

19. Very few fence their range. 

20. I think it would be a hard matter to raise better beef than we do here. 

21. Springs, creeks, and rivers. 

22 to 26. I have had but little experience with sheep, and there is not 1,000 head in 
the county. 

27. I will answer fully hereafter. 

28. It is almost impossible to find the corners of the surveyed sections, owing to the 
fires that have swept the woods from time to time, obliterating the marks that were 
put upon the trees and burning up posts or stakes that may have been put in the 
ground. 

TIMBER. 

1. All the land here is timber land, comprising fir, cedar, spruce, maple, alder, and 
other small varieties. 

2. No timber is planted here except orchards — that is, in Western Washington. It 
is difficult to determine what kind of timber is the best, although, all things consid- 
ered, fir may be the most valuable. I believe fir continues to grow from 500 to 1,000 
years. 

3. I would dispose of the public timber lands, as I would all other lands, by lease 
only. I will give my reasons hereafter. 

4. I would certainly classify the different kinds of timber lands. Some of this tim- 
ber land is the richest kind of soil, and will make the most valuable kind of farms 
when the timber is cleared off and the stumps out, while other lands would be of no 
value after the timber is removed unless it should be for the stone or mineral that may 
be on it. Forty acres of timber land is as much as any one man can change into a 
farm during his lifetime. No person who settled in Western Washington that I know 
of has 40 acres under cultivation whose claim consisted of timber land altogether. 
Our timber lands are the most valuable of all lands, because a family can settle on them 
with a smaller capital than on any other. The timber furnishes them all their build- 
ings, fencing, fire- wood, and many other things, all of which they would have to pur- 
chase if they settled on prairie land. 

5. When we clear off the timber unless we cultivate the land in a few years it would 
be a dense jungle. Alder comes first, and afterward cedar and fir. 

6. Regarding forest fires, I presume since whites first settled here more than half of 
Western Washington has been burnt over, some of it several times. When we have 
a very dry season it is impossible to keep fires from spreading. A man settles on a 
piece of rich timber land with the intention of making a farm. The timber is of no 
value to him except what he needs himself, unless his land borders on the water. His 
greatest desire is to get rid of the timber as fast as he possibly can. The ground is 
covered with dense underbrush, consisting of vine, maple, cactus, all kinds of berries, 
thorns, uettles, weeds, &c, almost impossible to get through. The settler's first work 
is to clear off the underbrush from a piece of land for a garden, house, &c, and hopes 
for a dry summer to burn it up. Should a very dry seasou come his fire is sure to 
spread. And to tell him he must not burn it you might as well tell him he must not 
eat his dinner. But of late years fires do not spread so much, 1st, because the seasons 
are wetter than they were ten and twenty years ago; and, 2d, because most of the 
dead timber that had been accumulating for ages has been burned, and in its place is 
a dense growth of young green timber, which keeps the sun's rays from drying the 
ground, and makes it very difficult for fires to run. 

7. In regard to depredations upon the timber, I think there is but one kind that 
should be stopped or caused to pay — that is, cutting saw-logs for the manufacture of 
lumber or spars for export. If the government allows the Northern Pacific Railroad 



PUBLIC LANDS. 525 

Company to cut all the timber they may need for the construction of their road it 
would he a caricature upon justice to stop anything else except the two cases I have 
mentioned. 

8. There has been hut little timber cut in this county yet, so I can give little infor- 
mation on this head. 

9. I consider everything connected with the public lands ought to be under the 
jurisdiction of United States district laud officers. 

LODE CLAIMS AND PLACER CLAIMS. 

I know but little of these, and therefore won't refer to them ; but as the law makes 
it your duty to recommend in your report to Congress whatever you may deem wise in 
relation to the best method of disposing of the public lands to actual settlers, and as 
you have submitted certain questions to me and invited me to give my opinions and 
reasons therefor, I shall now proceed to do so. 

I will first state I am a native of Scotland. I have read much ; I have seen a good 
deal of the world. I know and appreciate the value of the United States form of 
government, and the sole reason why I take the trouble to write this is in order to 
contribute, as far as lies in my power, toward the preservation of that form of gov- 
ernment, so that others who are to come after me may be able to enjoy the same ben- 
efits that I have and am enjoying. They who know no danger fear none. A man who 
has never felt the pangs of hunger cannot feel for those who do. No one can appre- 
ciate the benefits of a good form of government until they have experienced the evils 
of a bad one. Few native Americans can realize the true value of land or the bless- 
ing of having a home of your own. 

We talk of disposing— that is, buying and selling — the land, the soil, the earth, as 
we would a pound of bread or a piece of cloth. Who made the earth, and for what 
purpose was it made ? It was made for the use of the beings who may be on it, but 
only for their use while they live upon it. The Creator of the earth never designed 
that one being should have the exclusive control of sufficient of the earth's surface 
for the comfortable maintenance of a million ; nor was it designed that any being 
should have any authority with the disposal of the soil after he had passed away. 
Every man who wishes to cultivate the soil has a natural right to the possession of as 
much of it as will enable him by his own labor to procure the means of existence for 
himself and for those dependent upon him, and no man has a right to more. This is 
the law of God. What would policy require the law of man to be in the United 
States ? What has made the United States the most powerful nation on earth in such 
a short period from its birth as a nation ? Was it the intelligence of its people ? Not 
that alone, for the same intelligence can be found in other lands. Was it the form of 
government established ? No; for that form of government could not have existed 
for a hundred years in any part of Europe ia the present condition of man. It was 
the freedom and boundless extent of the soil. This secured the individual independ- 
ence of the people ; and so long as that independence can be secured a popular or dem- 
ocratic form of government may continue to exist and prosper ; but when once a ma- 
jority of the people are dependent upon others for their daily bread, their independence 
ceases and a democratic government will commence to decline. 

Carlyle wrote truly when he wrote : " Where no government is required save that 
of the parish constable, as in America with her boundless soil, every man being able 
to procure labor and recompense for himself, democracy may subsist, but not else- 
where, except briefly, or as a swift transition towards something other and further." 
So long as an acre of land fit for cultivation is free and open to any one who chooses to 
go and occupy it, our government may continue to prosper ; but whenever that last 
acre has become private property, our form of government will commence to receive 
the strain that will test its strength. Why ? Land is the true source of power, and 
the balance of power changes with the balance of property. As the disposal of the 
soil of any nation rests with the one, the few, or the many, so is the dominion of that 
nation in the hands of the one, the few, or the many. It has been the tendency in 
every land for the ownership of the soil to concentrate in the hands of a few ; it is so 
in the United States, but not to the extent that it will when it is beyond the reach 
of a poor man to become a land owner; and does any intelligent person think for a 
moment that our form of government could exist if the ownership of the soil approx- 
imated to that of England? 

Some patriots may say that the American people are too intelligent ever to over- 
turn or abolish the best form of government that ever existed. What will that intel- 
ligence teach them? Every sane American who can read will know that his political 
creed teaches him " that all men are created equal, that they all are endowed with 
certain rights, and to secure these rights to all is the purpose for which governments 
are instituted." What is the meaning of the right to life ? Does it mean that a man 
may die of hunger while he is striving with all his energies to obtain the means of 
existence? Most assuredly not. The earth will produce enough for the comfortable 



526 PUBLIC LANDS. 

subsistence of all ; but if some have a great excess, others may not have enough. To 
regulate this is one of the objects for which governments are formed. Now what will 
be the course likely to be pursued by a mass of people writhing under the pangs of 
cold and hunger whose political creed teaches them these things, while they see mill- 
ions of acres of land held by men who have no more just right to them than they 
have, and which may not be used for the purposes for which they were made, es- 
pecially when their political creed further teaches them that whenever any govern- 
ment fails to carry out the purposes for which it was formed it is the right of the 
people to alter or abolish it ? Will they quietly continue to suffer and die, or will 
they exercise their right ? Who can doubt what will be their course ? Then comes 
anarchy, to be followed by a government of force, deriving its powers without the 
consent of the governed. The first step to be taken in endeavoring to prevent the 
same fate for the American Republic that befell the republic of Rome is to awaken 
the people of America to a sense of the danger that is rising before them, and once 
conscious of that fact it might be possible to provide a remedy, and no possible oppor- 
tunity could arise where suck a warning could more appropriately be given than in 
your report to Congress. If all the public domain is allowed to become private prop- 
erty it would require as terrible a struggle to destroy the owner's right to it as it did 
to destroy the ownership in man, and yet no man has any more just or natural right 
to an absolute right of property in the soil than he has to an absolute right of prop- 
erty in his fellow man. Every man has the right to the possession of a portion of the 
earth so long as he uses it for the purpose for which it was created ; but no man has 
a right to the absolute control of land of which he makes no use. In this Territory 
there are thousands of acres of land lying idle, owned by persons who purchased it 
from government for $1.25 per acre, and who would now ask $10 or $12 per acre from 
any one who wished to use it, thus becoming rich from what Mr. Mill terms the un- 
earned increment of that land. The government that tolerates such a course of action 
is not securing to all the rights with which their Creator endowed them. 

Suppose any one was to say to that government that is so liberally giving away 
what don't belong to them, You are dealing very liberally with me, giving me 160 
acres of land for nothing, but have you ever thought whether my grandchildren and 
their grandchildren will all be able to get 160 acres each for nothing also ? They will 
have the same right to get it that I have, and rest assured if they don't get it there 
will be trouble in the house. They won't be bluffed off with the answer that it they 
wanted land for nothing they should have been born a hundred years ago. They will 
answer that the soil of America was not made for the exclusive use of those who lived 
a hundred years ago, but for the general use of all who inhabit it through all ages. 

There is no monopoly so oppressive and so destructive of the principle of equality as 
monopoly of the soil, and the government that fosters and protects it is trampling 
upon the principles set forth in the Declaration of Independence. To carry out those 
principles, the soil should be leased in small quantities to every one who wished to 
cultivate it himself, an appraised value being put upon it at the time he obtained 
possession. Every tenant should pay a yearly rent for the land, which rent should go 
into the public treasury : so much into the county treasury where the land is situated, 
so much to the State, and the [residue to the national treasury. This fund would more 
than suffice to meet all expenses of government. At the expiration of the lease, or at 
the death of the tenant, the land should be appraised, and, if of more value than when 
the lease commenced, the amount of the accrued increment or the increased value aris- 
ing from the acts of the tenant shall be paid to him or his heirs, while the unearned 
increment, or increased value arising from the acts of others, shall remain with the 
land, and a higher rate of rent put thereon for the next tenant, the heir of a deceased 
tenant having the first claim. 

If this is too great a change to be carried out at once, a step toward it would be made 
by the passage of a law prohibiting any individual from owning more than a certain 
number of acres of land ; and if the government is not ready to do that, in the name 
of humanity don't let the residue of the public lands be a bait for greedy speculators ; 
let no one get more than 100 acres, and let no one get any who owns 100 acres ; 160 
acres is more than enough for any family if the land is fit for cultivation. 

The world is beginning to open its eyes to the land question. In most countries 
where civilization exists the laud is completely owned by a small fraction of the pop- 
ulation, and the governments of these countries have to be sustained by large armies 
of men. Not one of them could exist solely from the consent of the governed. Many 
able men are advocating a modification of the land laws, but they all approach the 
subject in a very delicate manner, well knowing the power they have to contend with. 
But this is the country where the problem of the ownership of the soil should be solved, 
lor this is the only country that acknowledges it to be the duty of government to secure 
all persons in the possession of the rights with which their Creator endowed them, and 
tl^e sooner the attempt is made the easier it will be to carry it out. 

It would require volumes to treat this matter as its importance requires, and I have 
not the time to spare to enter upon a work that may not be favorably received ; but I 



PUBLIC LANDS. 527 

'could not, consistent with my sense of duty as a citizen, allow this opportunity to pass 
of presenting my opinions upon a question of so vital importance to humanity at large. 
It is not among mass meetings of discontented and riotous men that these questions 
should he agitated, but it is in the legislative halls and before such commissions as 
yours, where a remedy can be peacefully applied, that these matters should be ablj 
and fully and impartially discussed. The time is fast approaching when our political 
creed will have to be changed, or else the principles contained therein will have to b€ 
faithfully carried out. 

I am, respectfully, your obedient servant, 

EDWARD ELDRIDGE. 



Testimony of Elwood Evans, attorney-at-law, Pierce County, Washington Territory. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1. 

Answers to certain questions submitted by the Public Land Commission. 

1. Elwood Evans, New Tacoma, Pierce County, Washington Territory ; attorney- 
at-law. 

2. Have lived in Washington Territory ever since it was established as such, having 
come to this section while it was Oregon (November 10, 1851) ; lived at Olympia, the 
capital, till December 1, 1878, since which time have made New Tacoma my" residence. 

3. Have never been able to believe that I could dona-fide avail myself of the privi- 
leges of either donation, pre-emption, or homestead laws under their true intent while 
I had no real design to become an agriculturist, and was in the practice of my pro- 
fession, which I could not abandon, compelled to reside in some town. 

4. Have had considerable practice in the Territorial land offices; have made the 
donation, pre-emption, homestead, and coal laws a matter of study and especial atten- 
tion. 

5. During the whole history of the Territory our land officers have,, with a true 
spirit of accommodation, advised settlers and claimants of the public lands as to the 
modus operandi of acquiring titles. I think (and I believe it is rather jealousy of what 
is due to my profession than selfish, but it is honestly believed, whatever the stimulus) 
that the services of attorneys have been thus rendered unnecessary by this too 
liberal custom, when their employment would have been advantageous, even econom- 
ical, for all concerned. It is my opinion, based on a long experience, that practice in 
the land office should assimilate to the mode of conducting business in courts ; that per- 
sons having business in the land office should be required to make their own showing, 
just as pleadings, petitions, motions, &c, are prepared, preliminary to the hearing in 
other courts. A register should no more prepare papers which constitute the applica- 
tion he is to grant or deny than a j udge should a motion for continuance or new trial. 
Conversely, the land officers should decide matters presented for their action, not ad- 
vise how a case shall be presented. Such a system imposes labor on the officer for 
which he is not compensated. It may be possible to some extent to compromise him. 
Much of the duty of the register and receiver may be of a judicial nature. Clerical 
or ministerial duties prescribed by law are not here referred to. I cannot recall a sin- 
gle instance in twenty-five years' practice where there has been just occasion to com- 
plain of unreasonable delay or expense to settlers in securing titles to their claims. 
Let me qualify this. From the practice which has been adopted I think there has 
been unnecessary expense entailed, but for this the local office is entirely blameless. 
Nor do I know, under the law as it now is, that any one is censurable. In contests 
before the register and receiver those officers, instead of being judges, as they really 
are and should be, are pro tanto reduced to mere commissioners for the taking of tes- 
timony to be certified up to the General Land Office. Every statement that is offered 
has to be received and reduced to writing. Every question that is asked, relevant or 
not, objected to or not, must be taken down. A voluminous record is made, often 
useless, expensive, and eminently unsatisfactory. Of course cases may arise when 
the hearing by those officers is merely preliminary to presenting it to the department, 
in which case such a course becomes necessary. But in most cases it would be the 
wiser plan to have the cause tried upon its merits by the local office. The decision 
presenting the facts, the affidavits necessarily showing the basis of claim or right, 
the evidence corroborating or rebutting, and the exceptions of an aggrieved party 
would be all-sufficient to secure substantial justice. 

In my opinion, subject to the right of exception to their ruling, the officers should be 
fully empowered to decide the relevancy and materiality of testimony and witnesses, 
to exclude irrelevant testimony, forbid cumulative testimony, and limit the number of 
witnesses on any particular fact ; in short, to try a contest as a judge tries a cause with- 
out the intervention of a jury, saving to parties litigant their right by bill of excep - 



528 PUBLIC LANDS. 

tions to save the testimony they desire saved for purposes of review. This would 
greatly abridge the labor of the officers, the time of the trial, the record, and in every 
way be a reform. The register and receiver should be a court or tribunal whose judg- 
ments should be nisi continuing with the effect of absolute settlement until reversed 
on appeal or review, and becoming absolute if not appealed from within a certain 
time. An unappealed judgment of the local office should be confirmed by the Com- 
missioner, as of course. The register and receiver for these judicial functions should 
be paid a salary. If the parties to the controversy desire .the testimony taken to be 
certified up with the case let them secure it as it is done in court. A register and re- 
ceiver acting as judges should not have their attention diverted as mere clerks. The 
settlement of a controversy, if not appealed, by the local office where the parties, wit- 
nesses, «fec, are better known has so many advantages comment is unnecessary. It is 
unjust to leave everything inabeyance till affirmedby the Commissioner orthe Secretary 
of the Interior after months or even years of delay. The decisions of the land officers 
in this Territory have always been commendably prompt. The delay which has oc- 
curred, as a rule, has been between the time of the action by the local officers and the 
affirmance or rejection by the General Land Office. This would not occur if unap- 
pealed cases did not require re-examination. The accustomed long interval between 
certifying for patent and issuing patent has been a cause of sore annoyance and real 
grievance in many instances. It is needless to more than refer to such a condition of 
things to expose its hardship and injustice. A settler for years is left in doubt as to 
the validity of his title, the regularity of the proceedings. The patent is withheld, he 
knows not why. His title is questioned, he cannot explain. He cannot call his own 
and fully enjoy that which he has earned, and rightfully should possess. 

6. Our land laws are very liberal and beneficent. I favor the homestead principle 
which secures homes and^er se shows good faith. The government may not be pre- 
pared to dedicate all agricultural land subject to its right of eminent domain to 
homestead purposes. If it is I would make that law the uniform system of settlers' se- 
curing agricultural lands. If the pre-emption law is adhered to it should be adminis- 
tered strictly to defeat its being used for the mere purpose of acquiring lands from the 
government. To the actual settler who makes bona fide improvements, and by the 
character of those improvements he exhibits bona fides, I would give the amplest oppor- 
tunity and most liberal terms to secure the title. The land offices should be cloihed 
with a fuller discretion to consider the equities which may present themselves in a 
case. It is impossible for a Commissioner, however able and thoroughly informed, to 
anticipate what may arise in a case in a country like this, or to fix a rule upon which 
a positive instruction is given to the local offices, which subjects an honest settler to 
great hardships and sometimes deprives him of his land — not from any fault of the set- 
tler, but because the rule is really too impracticable to be literally carried out. If a party 
places himself within the spirit of the law and of the rule, and shows why he has not 
complied, there are cases when he is as much entitled to affirmative relief as though 
literally executing both law and instruction. It is equally plain that some settlers ex- 
hibit truer bona fides in the expenditure of their all, though that is but a few dollars, 
who give all their labor they can spare, for they have a duty to those dependent upon 
them which may compel them to labor elsewhere than others more fortunate who ex- 
hibit on final proof the results of hired labor to the amount of thousands. This needs 
no elaboration. On the 14th of March, 1871, Honorable Daniel D. Pratt, then United 
States Senator, delivered a speech in the Senate on the " rights of settlers upon public 
lands," which I take pleasure in referring to as expressing views more ably and per- 
spicuously than I could hope to, were it proper for me to obtrude them in this paper. 

7. Pardon me for inclosing the "centennial address on this Territory, delivered at 
Philadelphia, in 1876." It supplies as definitely as I can, with my limited time, the 
data sought by this question. I also inclose a portion of an address on timber, re- 
cently delivered at the annual fair of the King County Industrial Association. While 
I have matured no system, I am clearly of opinion that the time has fully arrived for 
making a minute and detailed survey of the timber regions of the States and Territo- 
ries with as much care, precision, and method as is adopted in taking the census, and 
also for the adoption of some rigid system to reserve, protect, defend, and render re- 
munerative and useful this invaluable resource to any region in which timber may be 
found. 

8. 9, and 10. Principally answering the latter, but incidentally having 8 and 9 in 
mind. I have already referred to Ex- Senator Pratt's able speech on the philosophy 
and animus of our land system. His bill (S. No. 10 of that session) on page 3 of said 
speech is an admirable nucleus, about which may be constructed a perfected system of 
homestead and pre-emption rights, to which modes of acquiring land agricultural 
lands should be restricted. The avenue for absorbing the public domain other than 
in the legitimate uses of actual settlement should be rigidly closed. The time seems 
to have arrived to begin to save the land for the needs of settlement, to the exclusive 
appropriation for homes. To the actual settler, in commuting a homestead or paying 
for a pre-emption, I would allow the privilege of using any scrip, warrant, or other 



PUBLIC LANDS 529 

government pledge Sor payment of its indebtedness, in securing his title. I speak of 
the actual settler — to him I would extend every facility. While the pre-emption law 
exists, under which men may be hired to secure a tract of the public lands in a brief 
period, the bona fides should be ascertained by every test; and when ascertained, the 
honest pre-emptor should be placed on the same footing as the homestead settler. It 
is the principle or intent of the Pratt bill that I commend. I believe the words " ac- 
tual settlement" should be guarded by restraining language, e. g., by adding after 
settlement "for the exclusive purposes of cultivation or agriculture," the idea being 
limited to appropriating agricultural lands to " the making of homes." To effectuate 
this principle divide lands into classes, viz, agricultural, timber, coal, and mineral, 
the lands open to settlement by homestead being confined to the agricultural class. 

If the idea be adopted that the p ubli c 1 ands ( agric ultural lands of course are here meant ) 
are held in trust for those who are willing to appropriate a quarter section and make 
it a home, I would adhere to an uniform homestead system. If not, I would at once 
ingraft the principle on the land system, " That any man who has enjoyed the right 
under the homestead, pre-emption, or timber-culture act shall not make a claim under 
either of the other laws." He should be limited to the enjoyment of one right only ; 
but an abandonment to government under either law for good cause shown, not com- 
pensated in any way by private party by purchase of improvements or for relinquish- 
ment should authorize the enjoyment of one grant, before exhaustion of right. In 
other words, " The settler should, rather secure the privilege to perfect one grant, rather 
than one filing," provided always he has not relinquished the right acquired by a filing 
on a good or valuable consideration or inducement. Let me illustrate. A case has just 
occurred within my know ledge. In June last A took a homestead claim upon Vashon's 
Island, which, of course, necessitated the rowing of a boat between his said claim and 
the market for his produce, or where he obtained supplies. When he filed, it was un- 
derstood between himself and a brother that the latter would take an adjoining claim. 
The brother found an eligible location on the mainland. A has a crippled left hand, 
has lost two fingers of the left hand, and the two others are stiff -jointed, so that he can 
pull but one oar, and therefore cannot alone row a boat. To make a living under such 
circumstances upon the island is impossible, for he cannot get back and forth, nor 
bring his produce to market. To add to his misfortunes, A's wife being advanced in 
pregnancy, in July a neighbor's wife died in child-bed, the death being attributed by 
Mrs. A to the inability to communicate with the mainland and secure proper profes- 
sional aid. She left to go to the house of a relative, and the death of her neighbor so 
impressed her that she cannot be persuaded to return to her husband's claim upon the 
island. He is forced to abandon such claim. He cannot live upon it. He has paid 
$23 to the government, spent over three months' labor, and about all his money he 
brought with him, after paying his expenses to reach the country. He cannot take 
another homestead, although it will be conceded by all that he should be so allowed. 
He can now take under the pre-emption law. From this illustration, I desire to say : 
Let the party elect under which law he will hold, if the several systems are retained. 
Let him mature one right without he sells or disposes of his settlement for a valuable 
consideration or upon inducement of any kind ; in other words, not a compulsory re- 
linquishment. If he files and sells, his right is exhausted. If he files and for merito- 
rious reasons without fault of his own he is compelled to relinquish to the government^ 
let him file again, if he brings himself within the rule entitling himself to relief. 

If the question be settled that the government can safely look to the timber, min- 
eral and coal lands for its revenue, and open the agricultural lands for homestead, may 
I suggest I believe abundance will be derived from a proper system of sales of the 
former— either the timber itself or timber lands, and cash entry for mineral or coal 
lands. It ought to be the policy to invite capital to buy directly from the government 
at a proper valuation rather than force capitalists to employ intermediate parties to 
make pretense of entering such lands who have neither means nor intention to de- 
velop mines. The government is defrauded ; parties are tempted to commit perjury, 
and the government besides really loses the value of the investment. All capitalists 
desire is assured title, speedily confirmed to them. They would pay more for a tract 
patented at once to the government by two-fold than they often give to these inter- 
vening squatters who swear away the United States title. Thus under the pre sent 
system perjury and fraud are invited, and others instead of the government realize the 
value of such lands. For example, if a coal company is willing to pay A $5,000 for 160 
acres of coal land for which A paid the government $2,400, is there any sense in the 
government absolutely tempting A to commit perjury and to defraud it out of the 
$2,600 which the capitalists would have paid the government quite as wiDingly if 
they could have purchased ? Coal or mineral lands should be rated by a sworn and 
competent commissioner. One mine or vein may be worth thousands while the other 
is not worth hundreds. Private enterprise sells articles at their true value ; all horses 
are not sold at the same figure. Private parties, railroad companies, realize upon 
lands according to their proportionate or true value. Lands worth $100 per acre are not 
sold at the same price as lands that are worthless. Why should not the government, 

34 LC 



530 PUBLIC LANDS. 

when it has property to sell, do business on business principles ? It would be but a tri- 
fling extra expense when timber lands, coal lands, or mineral lands are inspected and 
surveyed to grade them at what they are relatively worth, taking into consideration the 
extent of supply, quality of article, accessibility, &c, governing the affixing of value. 
Lands containing beds of true coal should command a much higher price than land 
containing veins of lignite — both are called coal lands. Is not such a truer test than 
proximity to a railroad ? There are sections where a mine two or three miles from a 
railroad would cost more to be rendered accessible than other locations where the 
building of a railroad of twenty miles might be required to get a railroad or an outlet, 
and the latter could be built at less actual cost. If the government can hope to real- 
ize from its coal, mineral, and timber wealth, sold on a plan as herein suggested, 
I am in favor of saving agricultural lands exclusively for homesteading by actual 
settlement. Five years of actual residence and cultivation is evidence of bona-fides, 
and should earn the land. I am not sufficiently well-informed as to the proportion of 
the public domain respectively classed as timber, mineral, or coal. If it is as great as 
I have reason to believe, I favor an uniform homestead system. Abolish the pre-emp- 
tion law ; abolish every invention for divesting the government of its title, that un- 
settles the mind of a party who is willing to convert virgin land into homes and tempts 
him to be a speculator or a land proprietor rather than a settler. 

In the settlement of controversies between claimants in the trial of contests, in fact 
in the awarding of a certificate of being entitled to patent, the register and receiver 
should be clothed with power to act judicially ; clothed with jurisdiction, with power 
to issue the necessary process, summon and compel the attendance of witnesses, grant 
continuance, punish contempts, and adjust the payment of costs. A transcript of 
such judgment of costs should be authorized to be filed in a district court, and a rule 
to show cause, or some similar proceeding, become vitalized into a judgment whereby 
the aggrieved party could recover by execution. These judgments should be nisi for 
thirty or sixty days, within which, if no appeal was taken, they should become abso- 
lute as to the claim or right of the party against whom rendered. He has had his day 
and is concluded. If appealed from or exceptions taken within that time they would 
go up to the General Land Office for further action of the department. If not, they would 
be returned as papers sent forward for patent. In contested cases, if unappealed, I 
would have them affirmed, of course. The right of an action at law, or to maintain a 
suit in equity to cancel a patent obtained through fraud or misrepresentation, is not 
affected. The jurisdiction of the Land Department would of course be restricted to 
the question of surrender of the United States title to respective claimants. The 
nearer you can make the decision of the local office final, until reversed on appeal or 
exception, the wiser the policy. It would lead to more thorough trial, make less costs, 
frequently put questions at rest, and in many ways prove beneficial. 

AGRICULTURE. 

1. In addition to the references to climate in the said centennial address, I send a 
valuable and reliable extract which answers this question as to Washington west of 
the Cascade Mountains. In this Territory, and certainly in Western Washington, 
although there may be exceptional seasons, there is abundance of rain and water 
for purposes of irrigation. 

2, The tables and statistics in the documents referred to answer this question as 
definitely as I am able with the data at hand. 

3. All that is cultivable at all ; of course I have no reference to the heavy timber 
lands. 

4, 5, 6, 7, 8, 9, 10. In this region I know of no real attempt to supply a system of 
irrigation, indeed I have not heard of such a necessity. We have a law (which I in- 
close) for the construction of ditches, but that is for the purpose of drainage ; true 
it serves both purposes, though really designed for the reclamation of swamp land. 

11. I know of one or two suits as to water or riparian rights, or torts growing out of 
the diversion of streams, but no questions have arisen which really bear upon the 
subject upon which this query seeks information. 

12. In this particular locality, the prairies of Pierce and Thurstin Counties, gravelly 
and devoid of soil, there are large areas of land fit only for pasturage and hardly for 
that. They are appropriated usually for sheep, though other stock to a limited num- 
ber range over them. I see no good reason for inducements to settlers to homestead 
this land, or to acquire quantities of it as pastoral land. The more they paid taxes on 
the poorer they would be ; some of it would require two acres for each sheep. 

14. I do not believe it policy to put the agricultural lands in this Territory, or in 
any Territory for that matter, in market. I have given my reasons for believing that 
the government should reserve its agricultural lands for homes for actual settlers. 

18. I think the growth of grass is increasing largely, that the prairie lands are im- 
proving because for years used as cattle ranges by which they have been manured, 
and that the burned timber openings are greatly multiplying forage for stock. 



PUBLIC LANDS. 531 

19. Cattle raisers as a rule do not fence. From the mildness of our winter, as the rule 
cattle and stock take care of themselves. 

I have not investigated sufficiently to give any accurate information as to the remain- 
der of the matters queried after under this head. 

TIMBER. 

1 and 2. To the two addresses inclosed I refer for general answers to these questions. 
I cannot reply accurately or in detail. A timher survey is required. 

3. It is generally conceded that if our heavily timbered lands are denuded of their 
timber they will have become entirely valueless, not needed or available for purposes 
of agriculture. If this be true then thetimberis the sole element of value. A tree suit- 
able for lumber should bring more than one utilized for fuel, fencing, railroad ties, &c. 
Saw-logs command more than fire-wood. Therefore a system or tariff of stumpage 
could and should be arranged which would make our forest lands a source of revenue, 
and of necessity bring them under the immediate supervision of proper officers, and 
the terrible waste and destruction now going on would be in great measure checked 
if not entirely stayed. Lease with power to remove is only license to despoil. Sale, 
of land gives absolute right for the vendee to cut down, burn up and destroy not only 
what is upon the tract sold, but affords the opportunity to set the match which consume 
millions of timber and destroy whole areas of timber country. The saw-logs may be 
sold first; after they have been taken the remaining small timber may be sold for cord- 
wood, ties, or other purposes. The sale should always be with the prohibition to use 
anything but an ax to fell a tree. Such a plan adopted would bring revenue to the 
government ; it would save timber land for the present and future generations. 

5. There is a vigorous and speedy growth. But the very speedy growth impairs the 
value of the timber for lumber manufacture. Our forest timber derives its value from 
its compactness, toughness, density ; its long maturing in centuries. The second- 
growth for a generation only is admirable for fuel, serves for fencing and many pur- 
poses ; but is valueless when compared to the old settler of thousands of years. 

6. Forest fires arise from several causes. (1.) The reckless use of fire in the felling 
of trees, to peel its bark or saw it up for fire- wood. (2.) The burning after a clear- 
ing without care. (3.) Occasionally from a camp-fire. In our dry seasons, in one 
extensive forest fire, more timber is destroyed, more timber land devastated by scorch- 
ing, deadening, and blackening the trees than is absolutely utilized. Prevention of 
the causes of fires as before suggested, creating the belief that the timber has a value, 
will do much to check this great evil. Bub if the fire starts, bountiful heaven, send- 
ing heavy rains, affords the only remedy. 

7. Our saw-mills indirectly have been the inducement for removing the timber from 
the public lands. The large companies own vast areas of timber land throughout 
Western Washington, bought at $1.25 per acre when currency was worth 40 cents on 
the dollar ; at which time lands happened to be subject to cash entry. These com- 
panies teach the government its duty. They have kept these forests in their virgin 
condition. The logger's ax has not invaded their extended domain. In the mean 
time, for twenty years their own lands not trespassed upon except by fires, they have 
bought from loggers the timber which has been converted into the immense lumber 
manufacture of Puget Sound. Depredation from any other cause has been so trifling 
that it is unworthy of mention. The legislation necessary is for the government to 
assert its possessory right and guard what is left, and save the proceeds in the same 
manner similar to the one herein suggested. 

8. The local custom is the establishment of logging camps in the heart of a densely- 
supplied timber section, staying there till every stick worth cutting down is con- 
verted into saw-logs. Sometimes camps are established and run by one of the large 
mills. Oftener, however, a logging camp is a private enterprise. Large booms of 
logs are collected, frequently as much as a million of feet in a single raft, and from 
two to three or four of these rafts are sent away from our logging camps in a year. 
These rafts are sold to the mills ; the mill owners purchasing sending a steam -tug to 
tow them to the mill at which they are to be manufactured into lumber. Trespass 
upon government lands, or from lands belonging to the logger, or from tracts which 
the logger has purchased that standing timber, are the several ways that the right to 
cut timber is exercised or acquired. I have frequently drawn conveyances of the 
standing timber, together with a right of occupancy for a fixed term to cut and re- 
move it. Sometimes the sale is unqualified, sometimes restricted to trees over a cer- 
tain dimension. Sometimes the cedar is excepted. I state this thus perspicuously be- 
cause it suggests business for a timber agent ; it demonstrates that all the growing 
timber has a value which can be measured. I have known sales of the timber on a 
quarter section to be as high as $600, payable $1 out of the proceeds sale of rafts for 
every thousand sold to the mills. Is there any good reason why the government should 
not profit by this timber ? 

9. If as in the present case at Olympia, and for what I know at Vancouver (my 



532 PUBLIC LANDS. 

business v* ith both offices has always been most satisfactory), I answer — yes! But as 
" whatever is worth doing at all is worth doing well," the protection of the rights of 
the government in the timber of Puget Sound would justify the employment of offi- 
cers for that special purpose. I would confer this appointment upon the local land 
office ; giving also the authority to them to use a proper detective force — the inspector 
to rate the timber, make sales and collections, reporting to such officers and subject 
to their supervision and direction. Were the land office clothed with jurisdiction, 
i. e.j as a court of first instance to adjust and determine complaints of depredations of 
timber it would prove a salutary system. I have often inquired in my own mind, 
what right has any one to seize timber without due process of law ? By what author- 
ity are rafts exposed to sale without condemnation ? It has always been the plan 
when seizures have been made to buy the rafts at the price they would allow them 
to bring rather than contend with the government as to the trespass by that officer 
acting in its name, but without warrant. Give to these land officers when acting as 
judges the inseparable incidents of "jurisdiction," and turn over this matter to 
their control. They possess the records enabling profitable sales of timber; they 
should be invested with the power to guard the timber land and secure the govern- 
ment against trespass and waste. 



Testimony of E. C. Ferguson, Snohomist County, Washington. 

The questions to which the following answers are given, will be found on sheet fac- 
ing page 1. 

Snohomist City, Washington, October 10, 1879. 
Public Land Commission, Washington, D. C. : 

Gentlemen : Having received your circular of interrogations, &c, I submit the 
following answers : 

1. E. C. Ferguson, Snowhomist, Snowhomist County, Washington. 

2. Nineteen years in the county ; twenty-one years in the Territory. 

3. Have acquired title to public lands under the pre-emption ar>d homestead acts. 

4. Have had considerable business with local land office in making applications for 
parties under the pre-emption and homestead acts, taking testimony of witnesses on 
final proof, &c. 

5. On pre-emption (uncontested), except time of residence required by law (not 
less than six months and within thirty months), on filing declaratory statement ; fees 
at land office, $3 ; if made here, one to two dollars to party who does the business ; on 
final proof, $4 fees at land office ; actual expense of pre-emptor to Olympia and back, 
$15 ; testimony of witnesses, if taken here, $3 ; if witnesses go to Olympia, same as 
pre-emptor ; time necessary to make the trip to Olympia and back, five to six days. 
On homesteads, same, with the addition of the larger fees. Contested cases — cannot 
say. 

6. Do not see the propriety of not allowing a party to file a second pre-emption de- 
claratory statement when he has failed to make proof and payment on his first filing. 
Think it should also be allowed in homestead entry, for it often happens, in this part 
of the country, that a poor man takes up a claim and lives on it two years or more, 
and then, in case of pre-emption, has not the means to pay for the land, but if allowed 
to sell his improvements to some party and make another filing, the party purchasing 
would immediately file upon the land and the party selling would have something 
with which to commence upon another claim. 

7. This county is principally a timber county. About the mouths of the rivers are 
some tide marshes which have to be diked to render them fit for cultivation. A 
very limited amount of prairie probably not to exceed a thousand acresin the whole 
county. This is a great county for grass, also for grain. The greater portion of the 
land is covered with fir timber suitable for lumber, the bottom lands along the streams 
are covered with spruce, cedar, maple, alder, cotton wood, vine, maple, &c, occasionally 
fir grows on the bottom lands. While the land is principally covered with timber, the 
soil is good, and when the timber is removed the land produces well grass, grain, 
fruits, and vegetables. The soil is A 1. 

8. I think by general rule. 

9. Do not know of any better system then the present. 

10. Do not know of any better way than by pre-emption and homestead entry. 

AGRICULTURE. 

1, Climate mild ; plenty of rain ; fair length of seasons generally, but light fall of 
snow in winter. No irrigation needed. No frost here yet at this writing. 

2. Rain from September to May generally, sometimes later in the fall ; usually have 



PUBLIC LANDS. 533 

some rain up to 1st of July. I have never known the crops to suffer for want of rain ; 
sometimes have a little too much. 
3. No irrigation needed. 

5. None. 

6. Not wanted. 

12. None, except such as are only partially cleared. 

13. Not in this county. 

14. No. 

15. One acre. Am acquainted with some sections not so good. I think there are but 
few better. 

16. Question rather vague ; say 5 cows. 

17. Cannot say. Country sparsely settled. And where settled not one-eighth of 
the land cleared up. Say, where a settler has 20 acres cleared, will average 10 head of 
cattle. 

18. Increased. 

19. No cattle raisers as a business. 

21. Springs and streams from the mountains. 

22. Say five. 

23. No regular sheep pastures ; only a few in the county. 

27. None. 

28. Yes ; in many instances corners cannot be found. 



1. Mostly timber uplands, red, yellow, and white fir, cedar, hemlock, &c. ; bottoms, 
spruce, cottonwood, maple, alder, cedar, and vine. Red and yellow fir and cedar used 
for lumber. Balance of timber not much used, yet some maple, alder, and spruce are 
used in the manufacture of furniture, also cottonwood for staves. Spruce is also man- 
ufactured into lumber. 

2. None planted. 

3. Think the lands should be disposed of only to actual settlers under the pre-emp- 
tion and homestead laws ; 160 acres, as at present. Do not think actual settlers should 
be limited to one filing only where they do not make proof and payment, because a 
party may make an entry in good faith and make valuable improvements thereon, but 
before he is ready to make final proof he may have a chance to sell his improvements 
to a party who has means to purchase but who does not desire to go further back and 
take up lands entirely unimproved. The first party, being acquainted with the coun-" 
try, will go further back and perhaps locate a better place than the one sold. I know 
of many instances of this kind, except where the party had first filed a pre-emption 
his next entry would have to be a homestead, and vice versa. As to the timber act of 
June 3, 1878, think it rather vague ; do not think there is any portion of this county 
(except some of the mountainous part) that it ought to apply to, but I notice there 
are a large number of entries already made under the act. If parties are allowed to 
acquire title under this act our county (or the best part of it) will soon be in the hands 
of capitalists, and consequently the settlement of the county very much retarded. 
I think that form No. 2, " Testimony of witnesses" (under timber act), should be more 
explicit ; say, after question 7 should be questions as to the nature and quality of the 
soil, its adaptation for cultivation when the timber is removed, &c, as it is a fact 
that much of our land is covered with desirable timber, and that its chief (or greatest) 
value at this time is the timber, and that the land is more valuable for agriculture 
after the timber is removed. Yet if capitalists are allowed to get hold of it in quan- 
tities (as they will if it can be located under the timber act), it may be a long time 
before the timber is removed and the land get into the hands of farmers ; but if it can 
only be acquired under the pre-emption and homestead laws there will be a much 
greater settlement and improvement, and the actual settler will get the benefit of the 
timber, which will enable him to make greater improvements. 

4. No. 

5. There is a second growth of timber where it is not kept down by the settler ; the 
same kind as originally stood on the ground. Think it would take at least 50 years 
for fir timber to acquire a size suitable for lumber. 

6. Forest fires do not do much damage in this part of the country. Forest fires are 
principally confined to gravel ridges ; these ridges extend along and near the sound 
shores, but in some portions of the Territory extend inland, although the indications 
are that at a time long ago a fire swept over a great portion of the country ; also, at 
a later period, say within the last one hundred years, a fire swept over quite an extent 
of country in this county. So far as my observation goes, fires have been started by 
Indians generally. I have noticed that after a hard winter we have the most fires, and 
particularly so if the following summer is dry, which is generally the case when we 
nave a winter with much snow. The timber being evergreen, the weight of the snow 
on the branches causes them to break and fall to the ground ; in this way the ground 



534 PUBLIC LANDS. 

gets thickly covered with the branches, which dry out in the summer and furnish fuel 
for the tires. The fires, once well started, they run up the dry bark «jn the fir trees, 
and if the wind is blowing spread very rapidly. But outside of gravelly ridges there is 
generally so great a growth of underbrush and the forest so dense that it does not get 
dry enough for a fire to run. Nothing as to mode of prevention. 

7 and 8. There has been a great deal of what we call timber stealing, that is, cutting 
timber on the public domain for saw-logs, &c. This timber is cut by parties in the 
logging business and sold to the mill companies on the sound, and by them manufact- 
ured into lumber, but the government is now taking steps to stop it, and from present 
indications, I think, with success. 

9. Think they would with proper limits, &c. 

As to mining, I have nothing to say ; my experience is limited. 

In speaking of the lands in this county, &c, I wish to be understood as to those por- 
tions on which there are settlements or liable to be. Now, our county on the east is 
bounded by the summit of the Cascades ; as a matter of course, there is a portion of 
mountainous country, none of which is yet surveyed and probably will not be for some 
time to come ; neither will it pay for some time to come to remove the timber from 
the mountain sides. As to the mountainous portion of the county, I make no answers 
or suggestions, but I think all laws in relation to the public domain should be so 
guarded if possible as to prevent capitalists from acquiring title to large tracts. 
Respectfully, 

E. C. FERGUSON. 



Testimony of John B. Goulter, county auditor and farmer, Oysterville, Wash. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1. . 

1. John R. Goulter, Oysterville, Wash. ; county auditor and farmer. 

2. Thirteen years. 

3. Yes. I have bought some offered lands. 

4. By being clerk of district court, and making out land papers for homestead and 
pre-emption settlers. 

5. I never noticed any unreasonable delay. 

6. I think timber lands ought to be offered at intervals, in limited quantities, to the 
Highest bidder by sale or lease. 

7. Agricultural and timber. 

8. By a competent judge designating the different sections is the only sure way. 

9. I do not understand the exact meaning of this question. 

10. I think there is less jobbery and crooked ways by the homestead and pre-emp- 
tion system than any other way I know of. 

AGRICULTURE. 

1. Mild climate and lots of rain in winter. 
12. Very little. 

15. Twenty, if they run on the natural range, without cutting any hay. 

16. Fifty. 

17. Very few. 

18. Increased. 

19. Some are fenced and some not. 

20. Doubtful. 

21. The clouds give plenty. 

22. Five. 

23. Neither, so far as I see. 

24. Sheep eat too close for cattle. 

25. The sheep take the dry and cattle the tide and marsh lands here. 

26. About 2,500. 

27. We want more land surveyed and the ten-mile floating grant of the North 
Pacific Railroad Company settled one way or the other. 

28. Not but what might be reasonably expected. 



1. Nine- tenths spruce, hemlock, fir, cedar. 

2. Plenty growing. 

3. Leased or sold to the highest bidder in limited quantities, whenever needed for 
current consumption by the mills, but not sell any large quantity ahead of the re- 
quirements of the mill to create a monopoly. 



PUBLIC LANDS. 535 

4. No. 

5. Yes ; principally alder, the second growth. 

6. A fool and a lucifer match ; they have ruined millions of feet here ; enlightening 
public opinion, 

7. Execute the present laws. 

8. Individuals cut and sell to mills. 

9. I think they would. 

I know nothing of mining. 



Testimony of W. H. Smallwood, register, and 'S. W. Brown, receiver, United States land 

office, Vancouver, Wash. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1. 

United States Land Office, 

Vancouver, Wash., November 19, 1879. 
Public Land Commission, Washington, D. C. : 

Gentlemen : In reply to your circular in relation to public lands we have the honor 
to state that the copies sent by you have been referred to such persons in various por- 
tions of Vancouver land district as, in our judgment, are best qualified to answer intel- 
ligently the questions propounded by your Commission. As register and receiver of 
this district we deem the subject of your deliberations of sufficient importance to re- 
quire from us a special report. 

pre-emptions. 

1. As to pre-emptions, we would recommend that the pre-emption law, if retained 
ipon the statute-book, be so amended as to prescribe, first, a definite amount or length 
of residence ; and second, a somewhat more definite amount and character of cultiva- 
tion and improvement ; third, we would also recommend that the price of pre-emption 
lmds within railroad limits be reduced to $1.25 per acre. 

homesteads. 

2. As to homesteads, we would recommend that the homestead law be so amended 
that the mere act of entry may not exhaust the homestead right. We believe the rule 
in force on this subject is too rigid, and, in very many cases, works a great hardship 

o poor men. On this subject the opinion of Assistant Attorney-General Smith, in 
ase of Bernard C. Killin, very well expresses our views. (See Copp's Land Laws, edi- 
tonof 1875, p. 241.) 
There is to-day a large class of persons in this country who, through ignorance or 
nsfortune, have, under the rule now in force, forfeited the homestead right without 
bing able to obtain a home. By a somewhat more liberal provision these men, the 
lare majority of whom have acted in good faith toward the government, would be 
prvided with homes, and the country would at the same time increase its power of 
ag cultural development and add to the number of its industrious and patriotic citi- 
zen. 

^^e would also recommend that the homestead act be so amended as to reduce the 
am<mt of fees and commissions required to be paid by the settler. It costs a poor man 
too uch to take a homestead under the present law. At the same time the most rigid 
reqi>ements should be enforced as to residence and cultivation. 

WVould further recommend that in cases of cancellation of homesteads, on proof 
of abadonment, some provision be made to protect the equitable rights of the party 
filinghe complaint. The rules of practice require the party who initiates proceed- 
ings c this character to deposit a sufficient sum of money to defray all expenses 
incidet to proof of abandonment ; and yet he has no assurance that some one else, 
more diligent " and better suited to watch the result, will not, at the very moment 
of canqiation, step in and make entry of the tract so canceled with a soldier's addi- 
tional *mestead right before he can possibly have an opportunity to know that the 
tract ivracant. Two or three cases of this kind have come under our observation, 
where fc> local officers were powerless to enforce a remedy in the interest of justice. 

timber-culture entrees. 

3. We raid recommend that this act be so amended as to specify distinctly whether 
residence, required of the claimant. The present law appears to" be silent upon that 
subject ; td with many the question of residence seems to be .an open one. If the 



536 PUBLIC LANDS. 

requirements of the present law are strictly complied with we see no reason why a 
residence should be necessary. The evident object of the law is to promote the 
growth of timber on the prairie lands. 

TIMBER DEPREDATIONS. 

4. The greatest source of annoyance to the local land officers is found in the subject 
of timber depredations. We would recommend that this matter be placed entirely in 
the hands of special agents of the General Land Office. It is impossible to enforce the 
law against offenders unless the prosecuting officer can be personally present where 
the offense has been committed. This the register or receiver cannot do and at tie 
same time attend to the primary duties of their offices. 

PUBLIC SURVEYS. 

5. We feel it to be our duty to call attention to the fact that on extending the pub- 
lic surveys discrimination appears to have been made hitherto against the most heavily 
timbered portions of this country. The rates of surveys should be so fixed that con- 
tractors will not prefer to do their work upon uninhabited prairies, while settlers upon 
timbered lands are required to wait for five, ten, or fifteen years (in one case, we are 
informed, seventeen years) for the survey of their lands before being permitted to 
make homestead entry, and then five years more before being allowed to make final 
proof. Certainly the prospect of such an experience will not do much to encourage 
settlement and agricultural development. In some cases there have been three or 
four surveys (during several years) of a township, each one finding settlers upon land 
which by a prior survey had been designated on the plat as " mountainous," " heavily 
timbered," "unfit for settlement and cultivation," &c. 

LAND UNFIT FOR CULTIVATION OR FOR TIMBER. 

6. We desire to call to notice the fact that a considerable portion of land along th« 
banks of the Columbia River is destitute of valuable timber or mineral, unfit for cul- 
tivation, and at the same time valuable for fishing and commercial purposes. Thi 
settlers upon these lands are unable to enter them either as town sites or with suck 
scrip as may be made available. Yet in many cases they have improved the lands by 
building houses, docks, &c, and have resided there in good faith for years, hoping 
some day to obtain in some way a title to the only homes they have in the world. In 
some cases it can be shown by competent testimony that upon certain tracts of this 
kind not one-half an acre can be found which can be cultivated. In one case it ap- 
pears in evidence that a pre-emption claimant had carried soil from another tract in 
order to make a little garden on his claim (the entire surface of his claim being rock) 
to enable him to make final proof ; yet in consequence of instructions from the Gen 
eral Land Office in a somewhat similar case, the local officers felt it to be their duty t 
disapprove of the proof offered, and therefore could not allow his final entry. 

Some remedy ought, in justice, to be found for these settlers; though some of the* 
have already abandoned their claims, having concluded that it would be impossible o 
make final proof without being able to show a reasonable amount of cultivation. (£e 
Commissioner's letter of February 6, 1877, in case of Edward Miller, pre-emption, c*h 
entry No. 1797, and John B. Nice, pre-emption, cash entry No. 1798.) In case of Edw;*d 
Miller supplemental proof was submitted, showing that there was less than one rre 
fit for agricultural purposes on the entire tract. Yet pre-emptions being granted'or 
agricultural purposes, the Commissioner of the General Land Office must necessity 
hold as he does : that the amount of cultivation is insufficient under the law. 

COMPENSATION OF REGISTER AND RECEIVER. 

In recommending a reduction of homestead fees and commissions we would >t be 
understood to favor a reduction of the aggregate compensation now provided w the 
register and receiver. Their duties and responsibilities are important and nuitfous ; 
and in districts where the salary and commissions fall somewhat below the mamum 
standard the compensation is not in equitable proportion to that of officers wbsome- 
what exceed the maximum. 

The chief labor of a district land office consists not in the number of entrie^ut in 
its location with reference to the traveling and inquiring public. Some revision 
should be made to pay the register and receiver for the immense amount of coispond- 
ence imposed upon them, and the many annoyances to which they are const'tly ex- 
posed by personal inquiries from those seeking information as to vacant pu lc lands 
and the operation of the various laws in relation thereto. A considerable jiount of 
additional labor has also been the result of the law allowing final proofs the made 



PUBLIC LANDS. 537 

and entries applied for through certain officers of the county in which the land is sit- 
uated. More than half the cases received through the mails from this source have to 
he returned for correction, and in some cases the papers are returned three or four 
times. Each case thus returned requires a letter of explanation. Yet the law, upon 
the whole, is rather a benefit to the settler at a distance, especially in this country, 
where rates of travel are unusually high. 

At present the law allows only the registers and receivers of consolidated districts 
to charge for transcripts of records and other information furnished to individuals, 
who in turn generally derive more or less profit therefrom. Officers of the govern- 
ment should always stand ready to furnish the necessary information to the public, 
but those directly benefited by such information should pay a reasonable compensa- 
tion therefor. Gratuitous labor and information are always in demand. In a land 
office they are staple articles, with which the market is never to well supplied. At least 
one-half the time of the land officers is taken up in waiting on and answering those who 
hesitate not " to ride a free horse to death." A fair compensation for such services 
would pay for the necessary outlay of clerical labor. 

Very respectfully submitted, 

. W. H. SMALLWOOD, Register. 

S. B. BROWN, Receiver. 



Testimony of Frederic W. Perkins, dentist, Walker's Prairie, Stevens County, Washington. 

Walker's Prairie, October 9, 1879. 

1. Frederic W. Perkins, Walker's Prairie, Stevens County, Washington Territory; 
dentist. 

2. About 20 years. 

3. I have not. 

4. By study and observation. 

5. In uncontested cases about one year from the time of payment. In contested 
cases it depends on- whether the case is decided by the local land office or an appeal 
taken, and then how far the appeal is allowed. 

6. I think that the present land laws induce many men with elastic principles to 
come so near perjury for the purpose of getting more land than they should get, even 
with a liberal interpretation of the laws, that it is almost a premium on that crime. 
The pre-emption, homestead, and timber-culture acts I think give more land than was 
intended by the framers of the law. The timber-culture act (although, as I take it, 
it should not apply to any land in easy reach of timber) is made to apply in sections 
where, although there may be no timber on the actual section taken, they are so sur- 
rounded by timber (a scattering timber thereon) that it amounts to about the same 
thing at last — a stretching of the facts that in any other case would be actionable, but 
is passed over in this. The homestead act is, I think, lame and unsatisfactory, inso- 
much as a homesteader does not have the same time to enter that the pre-emptor has, 
and in many cases loses his claim. For instance, I am a homesteader, poor, and far 
from the land office; I have no means of knowing that the survey is made and the 
plat recorded in the land office ; some one who knows all these things waits until my 
time expires, and then pre-empts on me, and before I know anything I am either 
forced to litigate or leave my claim. I have known instances where this could occur, 
and men are more liable to this out in this part than almost any other. 

The pre-emption laws are well enough, but in my opinion they, as well as all of the 
land laws, give too much margin. I would restrict all men to one quarter section ; it 
is all that any one man can farm as it should be, and large farms do not open up a sec- 
tion as fast as small ones. This is in strictly agricultural districts. In timber I would 
restrict all purchasers to the same amount, to wit, one quarter section; in grazing sec- 
tions to one section, provided they fenced it. I would make the fencing as necessary 
before getting a patent as the money. 

I am of the opinion that 160 acres are enough for any farmer, if it is divided fairly 
between prairie and timber. I would give the homesteader the chance of getting 40 
acres of timber for his own use in the same way that he gets his land ; that is, giving 
any poor man who homesteads his 160 acres of farming land and also a 40-acre timber 
lot ; this to the homesteader only. If any man has money to pre-empt, he can buy his 
timber. 

7. The land in this county can be divided into four classes : agricultural, timber, 
mineral, and waste or grazing lands. That portion contained in Colville Valley is about 
divided into one-third good farming, one-third grazing, and one-third timber ; south 
of the Spokane, one-half farming and one-half waste and grazing, with but very little 
timber. The lands that I call waste are rocky, sandy, and but little water in the fall 



538 PUBLIC LANDS. 

of the year ; but still there are places along this belt where good grazing is had all 
the year. That part now given to Indian Moses, and being on the west side of the 
river Okinakane, is almost all mineral; copper, iron, silver, gold, tin, quicksilver, 
coal, lead, and black-lead are found here in paying quantities. Silver and gold are 
also found in Colville Valley; also great quantities of fine limestone, white, blue, and 
gray, with some indications of graphite. I think that the best way would be to sur- 
vey all the farming lands, with the adjacent timber; then the other class of lands. 

9. I have already given my views on this subject, and I would say again that 160 acres 
of land, well cultivated, is all that any man should get from tne public domain as a 
gift, almost, from government. This, with a 40-acre wood lot, should satisfy any man 
not insane enough to try to get more than he can use. 

AGRICULTURE. 

1 and 2. The climate in this section is about the same as that of New England, with 
the exception of summer frosts, which make some of the tender vegetables uncertain 
in some localities. The rain falls principally in the spring and fall, with once' in a 
while a day's rain in the summer, followed aimost always by a frost. The snowfall is 
about 18 inches, and remains on the ground from two to four months. The lands do 
not require irrigation to raise grain, but sometimes gardens are benefited by it. 

8. I think that all the grains that grow in the temperate zone can be raised here, 
and most of the hardy fruits, apples, &c. We find that the hillsides are not so liable 
to frosts as the loiv holloivs. 

Questions 9, 10, and 11 do not apply to this section. 

12, 13. I think that fully two-thirds of this county is especially adapted to grazing, 
but for any man to get a homestead for grazing purposes the law would have to be 
changed, as he could not swear that he took the land to cultivate. I think that if any 
one was to have the right to homestead on grazing lands one section would not be any 
too much, for this reason : if land carries too many head of stock the wild grasses 
soon run out. A man should have sufficient range so that he can change his stock ; 
and I would make it incumbent on all to fence their lands used for this purpose before 
getting a title. 

14. I would give a certain time after the extension of the surveys (say two years) 
before giving the rights of private entry, and then only one section to one man. 

15. About four beeves to the acre. I think this is the average of all bunch-grass 
counties. 

16. About six head per annum. 

17. Can't say. 

18. Diminishing slowly. 

19. Not the practice to fence. Cattle are fed during the winter in this section. 

20. I think they would. 

21. Streams and living springs. 

22. About 12. 

23. Run out ; nothing left. 

24. No. 

25. Cattle and horse raisers do not want sheep near them. They cannot keep their 
6tock on any range that sheep occupy. 

26. I think about 15,000, in bands from 100 up to 3,000. 

27. I can think of nothing further. 

28. Sometimes the corners cannot be found, cattle having rubbed them down and 
the Indians having pulled them out. 

TIMBER. 

1. Large quantities pine, tamarack, fir, and cedar, maple, willow, and cottonwood 
on the streams. 

2. There is no timber planted, fruit being all that has been planted. 

3. The fact that a farmer can go on public lands and get all the timber necessary for 
his own use does not work well ; they destroy more than they use, but not in propor- 
tion to the lumber cutter. I said before, and I say again, that the only way that 
I see is to give the homestead settler a 40-acre lot on the same terms as he gets 
his farm, but to him only. The pre-emptor should have the same right to pre-empt 
40 acres of timber as he has to get his farm — that is, to pay for it ; but no one should 
have the right, near farming land, of in any way getting more than 40 acres. 

In the mountains, and in places where the farmer would not probably want timber, 
a man should be enabled to get a quarter section for logging camps, &c, but they 
should pay for it before cutting a tree. I think that this would make them more care- 
ful and do as little damage to young and growing timber as possible, for every tree 
that they damage the loss would fall on themselves and not on the country at large. 
Man is more apt to look strictly after his own than that of others is one reason for 



PUBLIC LANDS. 539 

this. As to the price of timber lands, it would depend on the quantity and quality of 
the timber standing thereon, from $1.25 to $10 per acre ; and I would make it a penal 
offense for any one to cut any timber on the public domain for speculation. The fine 
can be paid, but if imprisonment be added men would think twice before risking it. 
A man can afford to pay the fine, for he makes it from the timber, but cannot afford 
the disgrace of imprisonment. 

5. The second growth is much the same as the one cleared of the timber. The Hud- 
son Bay Company, when they repaired their post at Fort Colville, about sixty years 
since, dug a saw-pit, and in that pit now grows several pines that are from 6 inches 
to about 12 inches in diameter. The growth is slow. 

6. Fires almost yearly and are very destructive, deadening vast spaces, and the tinl- 
ber is dying out fast in these places. The Indians are the cause of almost all of the 
fires, and I do not know any remedy but their removal. 

7. I have already said that without the ownership there will always be more or less 
waste and destruction of timber. The waste of the actual settler does not amount to 
much ; but saw-mills and wood-cutters, and now the ties necessary for the Northern 
Pacific Railroad, will destroy much timber. I think that for every timber tree cut about 
three are broken down and destroyed, and the only legislation that would reach the 
subject would be, first, ownership as before stated ; second, imprisonment and fine, or 
both, for trespass on surveyed lands or those offered for sale. 

Settlers going into a new country unsurveyed must get rails, house-logs and fire- wood 
somewhere, and they must be procured from the public domain. There is but little 
waste committed, as the trees cut are small and the refuse is used for fire- wood. I 
would recommend that if any change is made in the land laws, or whether there is or 
not, an act should pass Congress granting the homesteader the same rights given to 
the soldier — that is that the time they have lived on their lands prior to survey should 
count them; but that they should live six months on the land immediately preceding 
the issuing of the patent. 

The xDioneer is but the soldier after all ; he pins his life on his arm and starts to 
open up an unknown country, and after all the trials and hardships of the frontier 
he gets no more advantage over those that come after the heat of the day is passed 
and everything is quiet and safe. The old residents of the Northwest think they 
should have some reward for the hardships they have endured in opening up the 
country in the face of such foes as the Indians of this section have proved themselves 
during the last two summers. I think that the least that should be accorded them would 
be that the time that they have lived on their lands should count, making them equal 
with the pre-emptor who comes in in time to reap the benefits of the quiet times that 
have come. Let the homesteader get title after the expiration of his time — that is, if 
he has been one year on his place before survey, then his title at the expiration of four 
years is five years or more, then in six months from the date of the survey, or rather 
six months from the date of his entry in the land office. 

8. The custom in this section is to cut all you want, either for your own use or for 
sale; the latter without much regard to waste or the destruction of surrounding tim- 
ber. The man cutting the timber owns it until paid for cutting, or it being delivered. 

9. I think that there should be appointed some persons, not connected by business 
with any one cutting timber for speculation, and every one so cutting timber should 
be prosecuted according to any law enacted on the subject, he to report to the district 
land office, but not subject to removal except by the General Land Office, and then 
only for cause. He should receive enough pay to enable him to devote the time neces- 
sary to the care of the timber in his district, informing himself of the character of all 
timber lands, the quantity and quality of the same, and the approximate value of the 
timber growing thereon. r 

In regard to the mining laws I know but little ; nothing from my own experience, 
and but little from any other source. 

I would add a few words about land scrip. I think that the way that speculators 
grab up all the best lands works a hardship on true settlers that should be remedied. 
You doubtless have heard more on this subject than I could write. 
I remain, &c, 

F. W. PERKINS. 



Testimony of D. W. Smith, attorney-at-law, Port Townsend, Wash. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1. 

1. D. W. Smith, Port Townsend, Wash. ; lawyer. 

2. Seven years November 23, 1879. 

3. I have ; under homestead and pre-emption laws. 



540 PUBLIC LANDS 

4. Making entries, final proofs, and practicing before district land office in contested 
entry. 

5. From twelve to eighteen months after final proof; entry not contested. I was attorney 
for contestant in the case of Thomas Fleming vs. Gregory Bailer ; contested pre-emp- 
tion entry tried before district land office at Olympia, Wash., December, 1876, which 
was appealed to honorable Commissioner General Land Office, and has since never been 
heard from. Appeal was regular so far as heard from. Cause still pending before 
honorable Commissioner and undecided, as I am informed, from lack of clerical force. 
(Parties will die soon and settle their rights elsewhere if government don't decide be- 
tween them soon.) The expense is simply enormous to the settlers in Clallam, Jefferson 
Island, San Juan, Whatcom and Snohomish and parts of Kitsap Counties, on account 
of the great distance from land office— from 100 to 250 miles — and inconveniences of 
travel. It is difficult making a farm in this timbered country, and four out of every 
five settlers have to mortgage their claims to get money to pay the purchase price and 
expenses of proving up, which it takes them years to pay off. The government should 
either create a land office at Port Townsend for the convenience of these counties or 
lessen the price of the land when over a given distance from a land office, or furnish 
some other adequate offset to such great inequalities. 

6. 1st. Yes. The law contemplates that a competent person shall have the benefit 
of both the homestead and pre-emption acts. Yet if he takes a homestead he is prac- 
tically barred of the other by virtue of clause 2 of section 2260, Revised Statutes, 
which forbids him from removing from his own land &c, unless he either perjures him- 
self or makes a sham conveyance of his homestead to his mother-in-law for instance. 
The clause is inconsistent with the letter and spirit of the two laws, misleads settlers 
as to their rights, teaches them cunning to evade it, and ought to be repealed upon gen- 
eral principles. 

2. That the " act to amend section 2291 of the Revised Statutes in relation to proof 
required in homestead entries," approved March 3, 1877, should extend to cases of final 
proof under the pre-emption law also. There is no reason whatever why applicants 
for final proof under one law should be compelled to go in person to the district (or 
local) land office any more than under the other, and it is a great injustice. 

3. The act entitled "An act to grant additional rights to homestead settlers on pub- 
lic lands within railroad limits," approved March 3, 1879, is certainly an abortion. It 
was evidently the intention to give those who had been restricted to 80 acres an ad- 
ditional 80 acres, to make 160 acres, but the act, by limiting the settler to land " ad- 
joining the land embraced in his original entry," substantially defeats its own object, 
for more than half of the settlers whom the act was intended to relieve cannot find 
land adjoining their original entry, and to relinquish their original 80 acres, with the 
years of improvements they have placed upon it, would be a greater loss than the ad- 
ditional 80 acres (taking 160 in another place) would be a gain. If it is right to give 
such settler 80 acres more, they ought to have the right to take it wherever they can find it, 
whether adjoining their original 80 acres or not. That act was certainly of premature 
birth, and ought to be changed to operate equally on all settlers alike. 

4. Section 2261, Eevised Statutes, prohibits the second filing of a declaratory state- 
ment by any pre-emptor, &c. This is a great hardship upon thousands of honest citi- 
zens, who may be found in all parts of the Western States and Territories, who have 
by this technical provision lost their right of pre-emption forever, unless Congress sees 
fit to amend the law. There is not an honest settler in the West who will not con- 
demn it. The filing should be limited to twice, not once. It operates harder upon 
young men than any other class, who, through lack of forethought, and with undue 
haste, file declaratory statements upon a tract of land which may prove unproductive 
or worthless, and not worth the price, and they lose it and their right because they 
cannot file again. Thousands, again, who have filed declaratory statements in good 
faith, by reverse of circumstances become obliged to let the land and their right go. 
Now, as the fee which the pre-emptor pays upon filing declaratory statements, to wit, 
$3, amply pays for all labor in canceling the land he files for, &c, &c. ; and as there 
can be no good reason for not allowing a second filing, except the fact that it would 
give the land officers a little more trouble (which they are amply paid for by said fee), 
the law ought to be so changed as to allow a second filing. The party who filed the 
second time would, as a rule, stick to it, and both government and settler would be 
better off. Should the law be changed as herein indicated, it would be necessary for 
the pre-emptor to make oath, at some stage of the proceeding, as to whether or not he 
had previously, at any time or place, filed a declaratory statement for the same or any 
other tract of land, and that he had never had the benefit of the pre-emption law. 

5. The " act to provide additional regulations for homestead and pre-emption entries 
of public lands," approved March 3, 1879, ought to be repealed, as it amounts to noth- 
ing, and never will, except to burden the settler with more expense. 

6. The act of March 3, 1875, giving Indians who have abandoned their tribal rela- 
tions, &c, the right to homestead the same as white men may be all right applied to 
some of the tribes in the older States who have been under the influences of civiliza- 



PUBLIC LANDS. 541 

tion for half a century or so, but it is wrong as applied to the " Siwashes ,; on this coast, 
for the reason, which experience fully confirms, that it is an impossibility for any In- 
dian living with or in the vicinity of his tribe to become what the law contemplates he 
shall be to come within its provisions inside of one generation. Nor is this* principle 
of progression any more true as regards " poor Lo " than it is as regards any other race. 
It has taken the " noble white race " from four to six thousand years to reach his pres- 
ent state of perfection in civilized life, as we term it, and yet Congress expects the In- 
dian, who stands where we stood six thousand years ago, to leap up by a single decla- 
ration in a day, hour, or minute to our standard. But it seems they do accomplish 
what it took us so long to do in a shorter time, as the annexed advertisement will show. 
And herein the force of my objection may be most appreciated. The fact is the Indian 
gets the land, while he remains an Indian still, and the government and its honest 
citizens are defrauded. The Indians who have taken the homesteads, as shown by 
these advertisements, are no more to be compared to a white settler in point of indus- 
try than a drone is to the working bee. The object of the government was to encour- 
age them to labor like its own people and live by honest toil, which is laudable ; but 
this should be done in a manner not injurious to the government or other settlers, and 
it can be so done by giving them from 10 to 20 acres instead of 160. Ten acres is more 
than any of them will singly ever cultivate. 

7th. It is agricultural, pastoral, timber, and mineral. 

8th. If I understand the question, the rules which must govern the classification and 
disposition of the lands in Western Washington must vary according to the character 
of the lands ; thus the timber lands, I mean good timber, what is termed here a " good 
logging claim," is not regarded as good for agricultural on account of poor soil, but 
time may explode this belief. At all events, it is valuable now chiefly for its timber, 
and should be disposed of similarly as at present under existing laws. Where min- 
erals are usually found, up in the recesses of the mountains, the land is apparently 
valueless except for the minerals. 

9th. I know nothing about it. 

10th. I think the main principles involved in the present homestead, pre-emption, 
and timber-culture laws are right and cannot be improved upon. There are some 
defects which need remedying, and I have suggested a few of them, but the laws in 
the main ought to stand. Besides, the masses have become familiar with them. 

AGRICULTURE. 

1. Our climate is very mild the year round ; not very hot in summer, and so warm 
in winter that many varieties of flowers bloom outdoors all winter. It is seldom that 
the mercury gets down to zero, and some winters we have no snow at all. We have 
two seasons — summer and winter. The winters are wet, the summers dry, yet neither 
so wet or dry as to interfere with raising abundant crops or following any kind of 
avocation except for a day or two at a time. The dry season or summer begins about 
May 1 and lasts until about October 1, but sufficient rain falls for all purposes. No 
irrigation required here. 

12. Very small proportion. 

13. No, not different materially from the present laws 

14. No. 

21. Mountain streams and springs. 

28. Yes, it is almost impossible to find them. 



1. All timber nearly; best kind for lumber, furniture, ship-building, &c. Fir, 
spruce, cedar, maple, cottonwood, &c. 

3. Sale where it is strictly a logging claim, price $10 per acre in tracts to one individ- 
ual of from 40 to 320 acres. Timber land is so cheap under present system that large 
mill corporations have and now are gobbling up all the best timber lands in the Ter- 
ritory, which will prove oppressive by and by. 

4. I would, if practicable, as thousands of acres of land are fit only for the fire- wood 
upon it, price $2.50 per acre 160 acres or less. 

5. There is a second growth, slow, same as original forest ; would not amount to 
anything in size for several generations. 

6. Fires occur, but are generally not very destructive on account of the evergreen 
nature of the forests and moist climate. Make it a crime. 

7. Logs, ties, piles, &c, are cut a great deal on the public lands, I am informed. I 
think farmers, miners, or any other local industry should be permitted to go upon any 
public lands for materials for repairs or building and the like, but not allowed to take 
any for purposes of sale or speculation. Make it a crime. 

9 I think there is no way to prevent unlawful spoliation of timber except by the 



542 PUBLIC LANDS. 

enactment of suitable laws for its sale, and then keeping a secret agent of the govern- 
ment employed to prosecute any who take timber unlawfully, and seize what they 
have taken, tools, &c. 

D. W. SMITH. 



LEGAL NOTICES. 



Land Office at Olympia, Wash., 

September 20, 1879. 
Notice is hereby given that the following named settler has filed notice of his in- 
tention to make final proof in support of his claim and secure final entry thereof at 
the expiration of thirty days from the date of this notice, viz : 

Job Gelloch-Kanum (Indian), homestead application No. 2042 for the NE. \ of sec- 
tion 15, township 40 N., R. 3 E. ; and names the following as his witnesses, viz : H. A. 
Judson, of Whatcom County, Wash., and J. A. Tennant, of Whatcom County, Wash. 

J. T. BROWN, 

Begister. 

Land Office at Olympia, Wash., 

September 20, 1879. 
Notice is hereby given that the following named settler has filed notice of his in- 
tention to make final proof in support of his claim and secure final entry thereof at 
the expiration of thirty days from the date of this notice, viz : 

James Seclamatan (Indian), homestead application No. 2036 for the lot 2 of section 
20, SE. i of SW. i, and lots 2, 6, 7, and 9 of section 21, township 40 N., R. 3 E. ; and 
names the following as his witnesses, viz : H. A. Judson, of Whatcom County, Wash., 
and J. A. Tennant, of Whatcom County, Wash. 

J. T. BROWN, 

Begister. 

Land Office at Olympia, Wash., 

September 20, 1879. 
Notice is hereby given that the following named settler has filed notice of his in- 
tention to make final proof in support of his claim and secure final entry thereof at 
the expiration of thirty days from the date of this notice, viz : 

Joseph Spekahum (Indian), homestead application No. 2059 for the NW. £ of section 
15, township 40 N., R. 3 E. ; and names the following as his witnesses, viz : H. A. Jud- 
son, of Whatcom County, Wash., and J. A. Tennant, of Whatcom County, Wash. 

J. T. BROWN, 

Begister. 

Land Office at Olympia, Wash.. 

September 20, 1879. 
Notdce is hereby given that the following named settler has filed notice of his in- 
tention to make final proof in support of his claim and secure final entry thereof at 
the expiration of thirty days from the date of this notice, viz : 

George Hock-sah-button (Indian), homestead application No. 2047 for the SE. £ of 
section 15, township 40 N., R. 3 E. ; and names the following as his witnesses, viz : H. 
A. Judson, of Whatcom County, Wash., and J. A. Tennant, of Whatcom County, Wash. 

J. T. BROWN, 

Begist&\ 



Testimony of Bobert G. Stuart, receiver of public moneys from land sales at Olympia, Wash. 

Olympia, Wash., November 14, 1879. 
United States Land Commission, Washington, D. C. : 

Gentlemen : My name is Robert G. Stuart, receiver of public moneys for the dis- 
trict of lands subject to sale at Olympia, Wash. I have lived on the Pacific coast over 
twenty-nine years, in the Territory of Washington eighteen years, and in this land 
district eleven years, during eight years of which I have been receiver, &c. 

I never acquired title to lands from the United States except through direct pur- 
chase, but have improved wild lands both in the State of California and in this Terri- 
tory. 



PUBLIC LANDS, 543 

All homestead claimants contend that they pay in expenses more than the value of 
lands they acquire, while pre-emptors say that they have to incur the same expense 
and then pay for the land afterward, frequently a double price to pay for roads that 
are never built ; and I think their complaint is well founded. 

The only radical change I would recommend in the present laws would be the aboli- 
tion of all demoralizing oaths and testimony, which are expensive to the settler and 
but little protection to the government. Instead of this have a government inspector to 
make report from an actual view and inspection of the premises, confining the whole 
cost, first and last, within $30 to the settler on 160 acres of land. 

Have no forced and expensive attendance at the district land office, but let the 
claimant send in his application by mail, stating among other things that he is a native- 
born citizen of the United States, or had declared his intention to become such, or was 
naturalized, &c, and had never before had the benefit of the homestead laws. 

Accompanying this should be proof of citizenship by affidavit of the native-born as 
to the county and State of his birth, attested by the oaths of two of his neighbors 
that they believe him to be native-born, and in other cases by the record evidence. 
Respectfully, your obedient servant, 

ROBERT G. STUART. 



Testimony of John A. Tennant, farmer and civil engineer, Ferndale, Wash. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1. 

1. John A. Tennant, Ferndale, Wash. ; farmer ; by profession, civil engineer. 

2. Twenty-two years. 

3. Have acquired land under the pre-emption law, and have filed on land under the 
" homestead act." 

4. Have been county judge, and as such filed homestead notifications, taken final 
proofs, and done a general business as agent for parties wishing to obtain land. 

5. Under the pre-emption law, those who make actual settlement for the purpose of 
having a permanent home, avail themselves of the extent of time allowed by law (to 
wit, thirty months) before making final proof and payment. Those who settle for 
the purpose of simply obtaining a title either to sell, or perhaps at some future time 
live upon the land, make their proof and payment at the end of six months. We get 
our patents back from Washington in from six months to one year and a half. Under 
the " homestead act" a majority avail themselves of all the time allowed by law. Ex- 
pense for a pre-emption, $50, besides price of land ; expense of homestead, $75. These 
are in uncontested cases ; in contested, so many factors enter I cannot even give a good 



6. Yes ; in the ** homestead act " the provision <l that absence for more than six 
months at any one time," &c, shall be promptly repealed, parties (and they are numer- 
ous) avail themselves of this, putting the construction on it that a visit once in six 
months is all that is needed, and thus hold the land to the detriment of actual settlers. 
One case in point : A man holds a homestead in my immediate neighborhood who re- 
sides with his family in a town one hundred miles away ; has never had all his family 
on the place at any one time ; has never taken his household goods there ; has no fur- 
niture in his house ; has not cultivated one rod of land ; but, punctually, once in six 
months comes here, gets his supper at the nearest neighbor's, stays on his place all 
night, and leaves at daylight in the morning, to return again in six months, and says 
he has not abandoned his claim for six months. This may be an extreme case, but will 
show you the working of that clause in the law. Let this be stricken out, and make 
the residence and cultivation continuous. 

7. Generally level, being the valleys of several rivers and the deltas at their mouths. 
As we go back from tide- water the country becomes broken, and soon the foot-hills of 
the Cascade Mountains appear. This is true generally of all of " Western Washing- 
ton " land, mostly timber. About the only open or prairie land is the "tide flats or 
marshes" at the mouths of the rivers. These are being diked, and are highly product- 
ive. Timber, fir, cedar, spruce, hemlock, cottonwood, maple, alder, and birch along 
streams and on bottoms. 

8. To fix the character of classes of land and mode or price of surveying must be 
done by geographical divisions ; no general rule in my opinion will answer ; have had 
experience in public land surveys, for instance, in Walla Walla County, land reported 
by the first survey as second and third rate, now (without irrigation) thirty to forty 
bushels of wheat per acre. 

9. I know of nothing better than the system now in use. It is economical, easily 
done, and sufficiently accurate for all practical purposes. The geodetic is doubtless 
more correct and for open prairie country practicable, but for the heavily timbered 
western coast utterly impracticable ; am a surveyor by profession. 



544 PUBLIC LANDS. 

10. 1 consider the present land laws very good with the suggestion before made in 
reference to striking out clause " six months " in " homestead act." 

AGRICULTURE. 

1. Very temperate and even ; rainfall rather excessive ; but two seasons, wet and 
dry, in about the proportion of four dry to eight wet ; some winters no snow, occa- 
sionally 8 to 10 inches, which remains no great length of time; no need of irrigation. 

2. Rain falls from October to May, and some in all months. 

The remaining questions under agriculture do not apply to my vicinity, and need 
not be noticed by me. 

TIMBER. 

1. All timber. 

2. None ; no need. 

3. By sale. One quarter section or less quantity to each applicant, at not less than 
$5 per acre, and purchase made after thirty days' notice, and on the oath of applicant 
that he has not had the benefit of the act, does not own 160 acres of land, and that it 
is not made for the use of any other persons; to prevent companies from controlling 
the business and allowing laboring-men to own timber land and to profit by the sale of 
his timber. The price may seem high, but these lands are very valuable ; many acres 
that will cut 100,000 feet of lumber. 

4. By all means into at least three grades, and prices $5, $4, and $3 respectively. 

5. Always a second growth of same timber as formerly grew ; the growth very rapid, 
but from the newness of the country cannot tell the length of time necessary to make 
timber of size fit for lumber. 

6. Forest fires are very prevalent, and originate usually from the use of fire in clear- 
ing land and cutting roads. One a few years ago swept over hundreds of sections. 
They are very destructive; great tracts are left with nothing but the burnt and charred 
remains of once noble forests. I know of no mode of prevention. Occasionally we 
have a dry season, and from the resinous nature of the timber when a fire starts it 
burns with unparalleled fierceness. 

7. There have been some prosecutions and convictions for cutting timber in this 
county, but I am unacquainted with the amounts or extent of the trespassing. 

8. If a man wishes timber for use and does not happen to have on his own land just 
what he wants, and he finds what he wants on public land, he just takes it ; and the 
ownership is by custom securely vested in the one who fells. 

9. In the local land office by all means. 

LODE CLAIMS. 

There is no mineral here mined except coal ; and as far as my knowledge extends, 
titles were obtained prior to the enactment of the mining laws. 

PLACER CLAIMS. 

None in this part of the country. 
Respectfully submitted, 

JOHN A. TENNANT. 



Testimony of Wyoming Stock Growers 7 Association, of Wyoming Territory. 

Hon. J. A. Williamson, 

Chairman Public Land Commission, Washington, D. C. : 
Dear Sir : In accordance with your request, the following notice was published by 
the executive committee of the Wyoming Stock Grower's Association : 



Notice is hereby given that a meeting of the Wyoming Stock Growers' Association 
will be held in Cheyenne, at 10 o'clock a. m., Tuesday, November 18. General Will- 
iamson, Commissioner of the General Land Office at Washington, has left with the 
secretary a series of questions to which he invites the serious consideration of our 
stock owners. These questions refer to the permanent disposal, by sale or otherwise, 
of all United States grazing lands in this vicinity. It is necessary that our reply 
should reach the Congressional Public Lands Committee at Washington before De- 
cember 1. The subject is important, and a full attendance of representatives from 
neighboring associations and of our own is earnestly requested. 

THOS. STURGIS, 
Secretary Wyoming Stock Growers' Association. 



PUBLIC LANDS. ' 545 

Pursuant to this notice, the association met at the city hall in Cheyenne, Wyo., at 
the day and hour mentioned. The session continued throughout the day and through 
the forenoon of Wednesday, the day following. 

The attendance was large, and included, besides resident stock growers of Wyoming, 
representative men from Western Nebraska and Northern Colorado. It was further 
increased by the attendance of the members of both houses of the Wyoming legisla- 
ture, many of whom participated in the debate. 

The object of the visit of your Commission was fully explained to the meeting, and 
the suggestions made by the Commission as to the method proper to be adopted in dis- 
posal of the United States grazing lands were fully discussed. 

That the sense of the association might be known unmistakably, the four resolutions 
that follow were read in numerical order by the secretary. Each was then separately 
submitted to discussion and amendments invited, when the general plan was approved 
but details objected to. 

RESOLUTION NO. 1. 

Resolved, That in our judgment the best methods for disposing of the United States 
grazing lands throughout Wyoming is as follows : That a cash valuation of five cents 
per acre be placed on all lands without reference to their character or situation. That 
free entry be permitted in amounts of not less than 160 acres, taken by legal subdi- 
vision, and to as large an amount as the purchaser desires, limited as below by the 
right of other claimants ; that one year from the 1st of January next, following the 
passage and going into operation of this act, be allowed to all occupants of ranges in 
which to purchase ; that is between mutual occupants of one range who cannot agree 
upon the proportion to be entered by each. The register and receiver of the United 
States local land office shall decide, basing their decision on the cattle taxed to each, 
and so, pro rata, the amount of land to each ; that after the expiration of one year 
the land may be subject to entry by any one. 

This resolution was discussed by a large number. It received in its general features 
the support of three gentlemen, but the preponderance of the debate was strongly 
opposed to it. It was lost. 

Vote : Three in favor, remainder of association against. 

Resolution No. 2 was then offered : 

" Eesolvedf That all the lands, without reference to the character or situation, be 
offered for cash entry in any amounts desired by the purchaser, but not less than 160 
acres, taken by legal subdivision, at $1.25 per acre, this price to be maintained for 
one year from the 1st day of January after the going into operation of this act ; at 
the end of that year the price on all unsold lands to be lowered to $1 per acre ; at the 
end of two years from the time of going into operation of the act it be further low- 
ered to 90 cents ; at the end of three years to 80 cents, and so on decreasing 10 cents 
per annum until the figure of 10 cents is reached. The year following it shall be re- 
duced to 5 cents. One year from the going into operation of this act shall be allowed 
to actual occupants to purchase after each reduction in value. Conflicting claims be- 
tween actual occupants to be adjusted by the register and receiver of the United States 
local land office in proportion to cattle taxed to each party." 

This was debated, and lost by a unanimous vote. 

Resolution No. 3 was then offered : 

"Besolved, That the United States Government lease the said lands in tracts, by legal 
subdivision, for the term of twenty years, at the rate of one-half cent per acre per 
annum, which we hold to be 10 per cent, on the value of the land, for grazing pur- 
poses ; that the amounts of lands so leased be in amounts as desired by renter, subject 
only to conflicting claims of a joint occupant, in which case decision shall be made by 
the register and receiver of the United States local land office on the basis of the num- 
ber of cattle taxed to each applicant the preceding year; that at the expiration of 
any lease or during its continuance the renter may, at his option, buy the land so- 
leased to him at 5 cents per acre cash, but should he not so buy on or before the expi- 
ration of his lease the said land shall be open to entry by any one at said price of 5 
cents per acre when the lease shall have expired." 

This was debated and lost by a unanimous vote. 

Resolution No. 4 was then offered. 

" Besolved, That in our judgment the interests of stock owners would be best sub- 
served by the continuance of the present system, which permits only the securing of 
title to small tracts of land ; first, because we believe the system of cash entry and 
gradation, and to a less extent that of leasing, is opposed to our theory of government 
in that it enables individuals to acquire the monopoly and control of immense tracts 
of land, and concentrates the business in the hands of a few men. It will work great 
hardships to the owners of small herds, who will be unable to buy their range and must 
eventually leave the business ; second, that we believe the people of the United States 
at large are now greatly benefited by the distribution of the stock business through 
hands of many small owners, and by their consequent prosperity, than by its absorp- 

35 L C 



546 PUBLIC LANDS. 

tion in the hands of a few, and that the country will gain more by such widely spread 
industry than it can from the sums that may he realized from the sales of these lands ; 
third, that in our opinion the question of whether grass will not disappear from these 
ranges with constant feeding is yet unsettled, and that the stock business will not 
warrant the investment of so large a per cent, of capital as one-sixth in what may in 
a few years be barren and worthless property ; fourth, that we believe the practice of 
confining cattle within any positive and impossible limits, however large, unwise, and 
dangerous from the severe and destructive storms, and the consequent necessity that 
cattle should drift very widely at such times for food and shelter, and we think such a 
risk would not be compensated by any or all the benefits derived from the exclusive 
use of the ranges purchased; fifth, that a usually fair observance of each other's 
rights has been the rule among ranchmen and owners of stock, and that thus far self- 
interest has proved a safeguard against the heavy stocking of the range, and that we 
would rather trust for maintaining our rights free from encroachments to the community 
of interests and the sense of equity that is the rule here than to see a system adopted 
that must excite serious quarrels between occupants of ranges, and a bitter feeling of 
Injustice among the best stockmen, who, unable to buy their lands, will see themselves 
in time deprived of their business, and be obliged to sell and seek other employment." 

Debate followed, expressing in various forms approval of this resolution, and it was 
adopted by a unanimous vote. 

After further discussion the following was added : 

" Resolved, That while the unanimous sense of this association is opposed to any leg- 
islation that seeks to change the present land system of the United States, still, should 
such legislation be contemplated by Congress, it must, in order to meet the peculiar 
nature of this country and the character of the cattle business, combine the following : 

" A price not exceeding 5 cents per acre. 

" A term of years for payment of the same. 

" Privilege of purchase limited exclusively to actual occupants of the land." 

Upon motion, the secretary was instructed to add to the fourth resolution (which 
had received the approval of the association) an explanation in greater detail of the 
reasons for which the members opposed any change in the method of disposing of these 
lands. Said explanation is attached hereto in a separate paper. 

The executive committee were directed by the association to forward the result of 
their meeting to your committee ; and we hereby, with respect, submit the same, re- 
questing that you give it due weight in your deliberations and incorporate it in your 
report as the views of the stock owners of these portions of Wyoming, Colorado, and 
Nebraska. 

J. M. CAREY, 
E. NAGLE, 
THOS. STURGIS, 
Executive Committee Wyoming Stock Growers 1 Association. 

Cheyenne, Wyo., November 22, 1879. 

Memorandum of reasons for which this association disapproves of any change in the present 

United States land system. 

In addition to the reasons assigned in the accompanying resolution, No. 4, we offer 
the following : 

1. That the Territory is young, its settlement covering but ten years ; that the cat- 
tle business is in its infancy, a large majority of the herds having more or less indebt- 
edness upon them ; that to clear this off and acquire a surplus for investment in land 
must be a work of time ; that to open the lands they graze over to general entry at 
the end of a year would injure them greatly ; that under the present system our pop- 
ulation is rapidly increasing, because owners of small herds find grazing facilities, and 
that under a changed system, permitting entry of large tracts, this increase would 
cease, and population might even diminish. 

2. That the owners of these lands would be few in number to the voters of each county, 
and that strong reason exists to think that the lands would be exorbitantly taxed. 

3. That the lands must be fenced in large tracts to permit the necessary traveling 
by cattle during storms, and that the necessity for keeping open broad county roads 
through them would limit their size and add greatly to cost of fencing. 

4. That the danger of extensive burning of the ranges is a very serious one; it has 
occurred widely this year. Under a system of ownership of large tracts the danger 
of incendiarism from parties believing themselves injured, or for any other reason law- 
less, would be greatly increased, and cannot be guarded against; that now we can 
allow our stock to drift by common consent onto unburnt ranges. Under a system of 
ownership we could only do so by consent of owner, which might be refused, in 
which case total loss would result. 

5. That on calculation it appears that even at the low price of 5 cents per acre for 
the land, added to cost of fencing, which in a treeless country must be done with 



PUBLIC LANDS. 547 

wire, the investment in real estate, apart from annual outlay in repairs of fences and 
taxes, would be from one-fifth to one- sixth of the capital invested in the stock rang- 
ing over said area ; and that in our judgment the cattle business would not warrant 
snch an investment and could not be profitably pursued if such purchase were neces- 
sary. 

6. That under any system permitting the cash entry of large bodies of land much 
would pass into the hands of stock companies or associations, on account of the ina- 
bility of present occupants to purchase. Such companies or associations would be 
represented here by a single or but a few persons ; and the results, instead of adding 
to the permanent wealth of the Territory, would be to a great extent carried out of it. 

THOS. STURGIS, 

Secretary. 
Estimated cost of range and fencing. 

Value. 

500,000 acres, allowing 25 acres per animal =20,000 head $300, 000 

500,000 acres at 5c, $25,000. 500,000 acres=800 square miles ; 800 

square miles=40 x20 miles=120 miles, at $2.50 per mile $30, 000 

Land 25,000 

55, 000 



Cheyenne, Wyo., 

November 15, 1879. 
To the Public Land Commission, Washington, D. C. : 

Gentlemen : In answer to your interrogatories, as per your circular of blank date, I 
have to reply as follows, viz : 

1. In answer to question 1 in the first subdivision : My name is John F. Coad. I 
reside in the city of Cheyenne, Wyo. My occupation is that of stock-growing, and 
my stock range is situated in Cheyenne County, in the State of Nebraska. 

2. Eight years I have been growing cattle in the same locality. 

3. Have desired to do so, but found it impracticable under existing laws in quanti- 
ties and at prices which would justify me in so doing for grazing purposes. 

4. The practical workings of the public-land laws have not been good in this locality, 
for the reason that we have no agricultural lands worth mentioning, and under exist- 
ing laws a citizen can only obtain title to a veiy small quantity of land for grazing 
purposes ; which might be sufficient for agricultural, but utterly useless for grazing 
purposes. 

6. In my opinion the public-land laws are not adapted to the wants of our people, 
who inhabit a semi-desert country, suitable only for grazing purposes, where it re- 
quires 30 acres of land to support one head of cattle. A law permitting actual set- 
tlers to pre-empt from one to three townships of land at low prices, say 10 cents per 
acre, or leasing said lands to actual settlers for a term of ten or fifteen years at half a 
cent per acre, would be beneficial alike to the citizen and the government. 

7. Our section of country (Cheyenne, Nebr.) is undulating, rolling, sandy land — all 
grazing ; no timbered or mineral lands. 

8. By classifying the lands as grazing, timber, mineral, coal, &c. 

9. For grazing lands subdivide the country into large tracts, giving to each tract 
a frontage on or across some stream of living water, and extending the tract back 
half way to the next stream, river, or water supply, so as to include all the lands in 
some one of the several subdivisions of the entire country. This would necessarily 
make the subdivisions unequal in quantity, but equally well adapted for the only 
uses for which nature has designed them, viz, grazing. 

10. I only suggest as to grazing lands. I have no interest in any other kind and do 
not pretend to be well informed in reference to them. I am of the opinion that it would 
be advantageous to both the government and the actual settler if the government 
would by pre-emption sell to actual settlers from 1 to 4 townships of land each at from 
10 to 12 cents per acre, or lease the same land to actual settlers in like quantities for a 
term of ten years at from one-half to three-fourths of a cent per acre. The quantity 
of land so to be sold or leased to be restricted to the individual in amount in propor- 
tion to the number of cattle, horses, or sheep he may have or own which he proposes 
to graze upon the public domain; and in estimating the amount of land necessary for 
the raising and sustenance of one head of cattle, I would place the amount at from 20 
to 30 acres, the quantity of grass on a given acre varying very much within short dis- 
tances. 

Under your subdivision " agriculture," my reply to your questions are as follows, 
viz: 

1. Our climate is dry and cool in summer and dry and cold in winter. Have little 
or no rain from 15th of June to 15th of November, and then light snowfalls, with an oc- 
casional heavy snow storm, until about the first of the following May. 

2. From May 1 to June 15, in light showers; no other rain worth mentioning. 



548 PUBLIC LANDS. 

3. None. 

4. One hundredth; not more for the want of water supply. 

5. No attention is paid to agriculture ; no crops of any kind are raised. There is no 
timber suitable for fencing with that material and do effort made to raise crops of any 
kind. 

6. Do not know. 

7. North Platte River, which contains a good supply of water, but it is impractica- 
ble and would not pay 6 per cent, interest per annum on the investment required to 
divert the water from its channel and carry it on to the lands sought to be irrigated. 

8. Knowledge limited; observation none ; experience none. 

9. Have no knowledge of the working of ditches ; have none in my section of the 
country. 

10. The water has not been taken up or appropriated by any person or persons. 

11. Have no conflicts about water rights. 

12. About ninety-nine one- hundredths. 

13. I can see no objection to both the homestead and pre-emption laws being ex- 
tended to the grazing lands with the changes I have named as to quantity and price 
for pre-emption and a like quantity for homestead. See my answer 10 under first sub- 
division. 

14. In my judgment it would be advisable for the government to put these lands in 
market to actual settlers only as homestead or pre-emption claimants as before men- 
tioned. Were it otherwise the large capitalists of our country would soon own all or 
most of our winter-grazing lands and compel those persons actually engaged in stock- 
growing or desirous of embarking in that line of industry to purchase or rent from 
the speculator. 

15. From 20 to 30 acres, the grass being much better in some localities than others 
in the same section or township. 

16. I do not know. 

17. About 32. 

18. Diminished. 

19. As a general thing they do not. I have fenced in about 100,000 acres and have 
found that it works well. Have tested the system for three years. 

20. It would. 

21. The North Platte River. 

22. Do not know ; we have no sheep in our immediate neighborhood. 

23. It has diminished very much. 

24. Cattle will not graze on lands pastured by sheep at the same time. 

25. I have heard of controversies between cattle and sheep growers but know noth- 
ing myself about such matters. 

26. .We have about 150,000 head of cattle and about 500 head of sheep. 

27. See my answers hereinbefore given on same subject. 

28. There is little trouble, but not a large amount. 

We have no timber worth mentioning in our county, and no coal or mineral lands 
whatever. 

I am, gentlemen, very respectfully, yours truly, 

JOHN F. COAD. 



Testimony of /Stephen W. Downey, Delegate in Congress, attorney and counselor at law. 

Laramie City, Wyo., November 12, 1879. 
Hon. Thomas Donaldson, Public Land Commissioner, Washington, D. C. : 

Dear Sir : Your letter of September 16, transmitting copies of circular for distribu- 
tion, and containing a request for me to communicate my views upon the matters to 
which the circular relates, was duly received. I have made the distribution, as re- 
quested, and have the honor to submit below my views upon the subjects involved, mak- 
ing your questions the basis. 

preliminary questions. 

1. Stephen W. Downey, attorney and counselor at law, Laramie City, Wyo., Dele- 
gate in Congress from Wyoming. 

2. Ten and a half years. 

3. I have made filing under the desert-land act, and application for patent to several 
mineral claims which are still pending. 

4. I have made a large number of filings and procured a great number of titles under 
the various acts of Congress for clients; have been employed as counsel in contested 
cases, and have on file in my office the records of a large portion of the surveys of 
public lands which have been made by United States deputy surveyors in Wyoming. 



PUBLIC LANDS. 549 

5. In uncontested cases, the time, exclusive of duration of settlement before patent 
required by law, is short. The expenses, including attorney's fees and cost of survey, 
but excluding land office fees and government price of land, are about $30. In contested 
cases, the additional costs range from $100 to $1,000 and additional delay is from one 
to live years. 

6. I have observed but few. I will speak of one. Land office officials require final 
proof of locators to be made and authenticated at county seat of the county within 
which, or at the land office of the land district within which, the land is situated. 
This requirement frequently puts settlers to considerable trouble and expense : e. g. 
many settlers proceed from the southern part of Wyoming to the northern part of 
Colorado. The county towns in the southern part of this Territory are the convenient 
and natural places for the business transactions of such settlers. Through these towns 
they must pass and travel a long distance to reach the county seat of their county on 
the plains of Colorado, east of the mountains, and still further to reach the land office 
of their district at Central City, Colo. In my opinion the defect in the practical opera- 
tion of the laws necessitating such inconvenience and expense could be remedied 
without any corresponding detriment to the service by a rule allowing settlers to make 
proof at the most convenient county seat, authenticating the same by signature and 
seal of the clerk of the district court. 

7. Lofty altitude, the Laramie Plains and Platte Valley being 6,000 or 8,000 feet 
above sea level. The surface is divided into plains, rolling lands, and lofty mount- 
ains. Spruce, pine, fir, and aspen forests abound in the mountainous districts. Belts 
of valley and plain lands, from two to five miles in width along the principal streams, 
are irrigable therefrom, and it is believed that many remoter portions are irrigable by 
means of wells, with windmills to raise the water to the surface. The mineral re- 
sources of Wyoming are but little developed, though many mineral districts are known 
to exist, some of which are extensive and important. The coal and iron fields of Wy- 
oming are immense, the former being lignite, and in veins ranging from a few inches 
to twenty-seven feet in thickness, the latter being found in various forms of ore, 
among which are prominent hematite of very superior quality, said to be suitable for 
the manufacture of the best steel, and extensively used for metallic paint, and mount- 
ains of almost pure metallic iron. There are several large petroleum fields. There 
are also lakes containing inexhaustible supplies of soda, both in the form of carbonate 
of soda in solution (these being about sixty miles northward of Rawlins) and sul- 
phate of soda crystallized, these being about fifteen miles southwesterly from Laramie 
City, in townships 14 and 15 north, of range 75 west, of the sixth principal meridian. 
The soil and climate are favorable to the growth of wheat and barley where irriga- 
ble. The open country is generally favorable to winter and summer grazing. The 
northern part of the Territory has less altitude than the southern, and is said to be 
more favorable to agriculture. 

8. By a general rule as to the relations of different parts of Wyoming, one to another, 
but as to the whole country geographical divisions might profitably be made, on ac- 
count of approximate exclusiveness of interests in certain sections, nearness to mar- 
kets, and for other reasons. 

9. The present system of parceling appears to me, all things considered, the most 
practicable. Discriminations between agricultural and pastoral lands, if discreetly 
made and honestly carried out, would doubtless be advantageous ; but such discrim- 
inations would, in my opinion, open the way to the perpetration of frauds. Allow- 
ance of larger average to single locators, under the pre-emption and desert-land acts, 
would probably increase the sales of public lands. Smaller subdivisions than 40 acres 
and permission to locate on separate and detached lots would suit locators, but would 
undoubtedly result in closer culling, only the most desirable lands being likely to be 
chosen, leaving all the poorer and undesirable lands unoccupied. 

10. I know of none. 

AGRICULTURE. 

1. Cool and dry; some seasons sufficient rainfall to obviate necessity of irrigation ; 
usually insufficient ; heavy snows in mountains during winter keep streams full till 
July. 

2. Rainfall very uncertain ; sometimes almost daily showers in May, June, and July; 
other seasons scarcely a shower during the whole summer. The streams are full when 
needed for irrigation. 

3. Perhaps 1 per cent. 

4. Perhaps 10 per cent. 

5. Wheat, barley, oats,, potatoes, turnips, parsnips, onions, cabbage, and other vege- 
tables. 

6. Twenty-five to forty inches, miner's measurement. 

7. In this part of the Territory the Laramie River and its tributaries, and several 
lakes. 

8. I have had little experience in irrigation, but from the known constitution of 



550 PUBLIC LANDS. 

the soil in this region believe that irrigation would greatly enhance productiveness 
for a term of years. The greatest elevation at which I have known crops to be raised 
by my own observation is 8,000 to 9 ; 000feet. 

9. The water actually turned upon lands for the purpose of irrigation is probably 
all exhausted by absorption and evaporation, none or very little returning to the 
stream from which it was drawn. Irrigating canals and ditches usually have outlet 
through which any excess of water not drawn off for irrigation is returned to the 
stream whence it was drawn. No local regulations or restrictions regarding this mat- 
ter have been yet established here. 

10. What has thus far been done here has been so done to experiment upon the prac- 
ticability of such enterprise in such climate, with such constitution of soil and . at 
such altitude. The principal enterprise of this character in Wyoming of which I have 
any knowledge is that of the Pioneer Canal Company of Laramie City. By this com- 
pany a ditch or canal about 33 miles in length has been constructed, tapping the Lar- 
amie River about 25 miles above the city, at a point between Jelm and Sheep Mount- 
ains, on the left bank, leading the water out upon the Laramie Plains, passing about 
2 miles to the westward of this city. This work is now about completed, and is in- 
tended to be available for irrigation the ensuing season. It is proposed to hold the 
water-right under the sanction of section 2339 Revised Statutes, and an act of the 
Wyoming legislature, entitled "An act to create and regulate corporations," approved 
December 10, 1869, sections 28 et seq. 

11. None have arisen that I am aware of, but should present undertakings prove suc- 
cessful, and other similar ones ensue, conflicts may arise unless wisely and seasonably 
guarded against by law. 

12. As to soil, from one-fourth to one-half ; but, owing to the relief of surface, irri- 
gation would be impracticable upon a larger portion. 

13. It is, in my opinion, impracticable to establish pastoral homesteads at present. 
It seems to me that as large a portion of the lands as possible should be reclaimed by 
irrigation for agricultural purposes, and at the present state of development and ad- 
vance of experiment the demarkation between lands really and exclusively pastoral, 
and valueless for other purposes, and such as may be rendered agricultural is imprac- 
ticable. In case of the establishment of such homesteads, in my judgment the amount 
should be about one section to each settler. 

14. At present, no. If put in market, in my judgment the amount should be limited. 

15. Two to three acres here. Compares favorably with other plains. 

16. One hundred. 

17. Twenty. 

18. Little apparent change in ten years. 

19. A few only at present. Am not aware that fenced ranges have been tested in 
winter. 

20. Stockmen say not. Breeders careful in the selection ; breeding animals would 
probably improve their stock by such specific range system, while the stock of those 
careless in this regard would probably deteriorate. 

21. Flowing streams, mainly supplied by melting snows and springs in the mount- 
ains, and large lakes. 

22. Seven to ten. 

23. Probably diminished. 

24. Cattle are said to abandon ranges grazed by sheep. 

25. Serious conflicts have not arisen in this section, although some hostility against 
the increase of sheep-raising and wool-growing probably exists among growers of neat' 
cattle. 

26. Number of sheep in county, 50,000 ; number of neat cattle, 60,000 ; number of 
horses, 3,500. Sheep in herds from 500 to 2,500; larger single herds are not advisable. 
Cattle range at will. 

27. None. 

28. None. A few corner-stones have been removed, but from those remaining the 
locus of corners whose monuments have been removed can readily be fixed. 

TIMBER. 

1. The plain lands are barren of timber ; the mountainous districts are generally 
timbered. The timber is principally evergreen, consisting of pine, spruce, fir, hem- 
lock, and cedar, with some aspen, cottonwood, and willow. The timber is of slower 
growth than in regions having less altitude. The pine, spruce, and hemlock is more 
windy in growth and yields a small percentage of strictly clear lumber. Native lum- 
ber rates lower in market, but for durability is doubtless superior to Eastern lumber. 
For bridge floors, floors of stores and uncarpeted public offices, native flooring is said 
by builders to outwear even the walnut and ash of the East. I cannot vouch for this 
from observation. 

2. I am not aware that any trees have been planted in this Territory except about 
homes, for shade and ornamental purposes, and these are principally from the native 



PUBLIC LANDS. 551 

forests, a kind of mountain willow being most frequently selected. The growth is 
somewhat slower than that of the rock- maple or sugar- tree in the East. 

3. I would not dispose of them in this region at this time, but hold them for the com- 
mon use of settlers, to be devoted as required to the development of the resources of 
the Territory and adjacent regions. Fine grades of lumber, as before stated, are pro- 
duced here only in very limited quantities, large quantities of Eastern lumber being 
imported for use here. Exportation of Rocky Mountain lumber is impracticable from 
the fact that there is no demand for it abroad at the necessary cost of its production 
and transportation. It is therefore only available for the use of settlers in adjacent 
regions, and for the industries and enterprises in which they are engaged. A division 
or parceling of the timber lands among settlers by sale or grant is impracticable, the 
timber being aggregated in large mountainous tracts at an average distance of twenty 
to thirty miles from the settlers' homes, precluding the constant supervision essential 
to the protection of individual x>roperty rights in new and sparsely settled regions- 
Parties engaged in mining and reducing ores and settlers on tracts immediately ad- 
jacent to.timber tracts would have inducements to purchase in small lots. Apart from 
these, except for speculative purposes, there are practically no inducements to pur- 
chase timber lands. Regulations for parceling ancl selling would foster just what the 
Interior Department professes to have been trying to guard against during the present 
season. If the government determines upon the policy of allowing no timber to be 
used from the public domain without the return of revenue, some discreet regulations 
for the payment of royalty would in my judgment be more conducive to the interests 
both of the government and people than any regulations for the parceling and sale 
of lands. 

4. Not in Wyoming ; but if sales are determined upon such classification would be 
not only expedient, but necessary to just and equitable disposal. 

5. There is a second and thrifty growth both in districts burned over and chopped 
off. 

6. The origin of forest fires is difficult to ascertain. During the present season some 
of the most destructive fires have been maliciously set by the Ute Indians, destroying 
more timber than has been cut in Wyoming for all the uses of civilized life since the 
organization of the Territory, including railroad ties, fuel, and lumber. Other very 
destructive fires are undoubtedly started by the culpable carelessness of hunters and. 
travelers, who neglect to extinguish their camp-fires. The timber annually used is not 
10 per cent, of that annually destroyed by fire. I think the law should visit heavy 
penalties upon forest incendiaries, even those who become so through neglect or fail- 
ure to exercise even extraordinary precautions. A few examples, upon substantial 
proof, would have a healthy restraining influence. 

7. Depredations for the uses of life, amounting to infractions of law, have in my 
judgment been made very rarely, if at all, in this region. The act of Congress ap- 
proved March 2, 1831, entitled "An act to provide for the punishment of offenses com- 
mitted in cutting, destroying, or removing live oak and other timber or trees reserved 
for naval purposes," extracts from which appear as sections 2461 and 4751 Revised 
Statutes, in my judgment was designed at the time of its passage by the national 
legislature to inhibit the use of timber only so far as such use should deplete sources 
of supply for the anticipated wants of the Navy, of which depletion the Secretary of 
the Navy should be the judge. Unless it can be shown that the timber here used in 
the building of homes, in the fencing of farms, and the supply of fuel (the two latter 
being taken almost exclusively from the dead timber) has cut short the sources of sup- 
ply for anticipated wants of the Navy, I am not aware of infractions of law through 
forest depredations for the uses of civilized life. No legislation, in my judgment, is 
necessary to prevent such use of timber. 

8. The custom is to cut and use such timber from the public forests as is required 
for building, mining, fencing, and other domestic and industrial purposes. The same 
opinion obtains relative to the ownership of felled timber, as is held in regard to gold 
taken from placer ground, quartz from lodes, grass cut and converted into hay, and 
water carried out by irrigating ditches, to wit, that it is and of right ought to be the 
property of him whose industry hath wrought the change. 

9. Cela depend. Except in maritime parts of the country the administration of re- 
strictive laws upon the use of timber, if such laws are deemed politic, would seem nat- 
urally to pertain to the Interior Department rather than to the Navy Department. 
Believing such restrictions to be impolitic, and their rigid enforcement to be certain 
to result practically in the restriction of the settlement, growth, development, and 
prosperity of regions adjacent to the Rocky Mountain timber lands, where and for 
which this timber is alone valuable, I should regard the least rigid enforcement of 
such restrictive laws as the most desirable administration. 

This being a question of great moment to our people, I have hitherto communicated 
at length my views to the Secretary of Interior, and later to the Secretary of the Navy, 
in a lengthy letter, a copy whereof is herewith inclosed, to which your attention is 
earnestly invited, as a tolerably full expression of my views upon the timber question. 



552 PUBLIC LANDS. 

LODE CLAIMS. 

1. Ten years' experience ; chiefly in the Black Hills Range and Medicine Bow 
Mountains of this Territory, in organizing and generally directing prospecting, min- 
ing, and milling enterprises, at present having two stamp-mills running — one in Cen- 
tennial mining district, the other in Douglas mining district—both in the Medicine 
Bow Mountains. My attention has been directed mainly to organization and financial 
management, and not to actual work or personal supervision, nor have I had experi- 
ence in mine litigation. My experience has been acquired at a cost of about $30,000 
worth of experiments. 

2. In regard to vertical veins or such as have a pitch not less than 45° from the 
horizon, the present law (i. e., that approved May 10, 1872), so far as it relates to the 
exclusive use and enjoyment of the vein itself for 1,500 feet in length, with its dips, 
spurs and angles, by the discoverer thereof , I approve ; but in so far as it excludes 
others from discovering and appropriating any other really distinct j>arallel vein, I 
disapprove it. I think the discoverer should have whatever vein he discovers, and 
surface ground sufficient to work the vein its whole length, and until patent issues he 
should not have the right to exclude prospectors from searching for other veins; 
but upon the discovery or supposed discovery of a new vein, if within a certain 
distance fixed by law, from' the established center-line of former discovery, the 
onus of proof should be upon the latest discoverer that he has a distinct vein. Upon 
such proof, he should have exclusive proprietorship, upon compliance with the law 
in other respects, within any distance not less than 50 feet from the nearer wall of 
earlier claimant. The method of proof above referred to should be fixed by national 
law, and not left to department regulations, still less to mining district rules. 

3. My attention has not been directed to this subject. 

4. Veins of the character considered in answer to second question are usually dis- 
covered and opened at the top or apex, by which I understand either the outcrop or 
crevice between walls at the top of bed-rock. Veins discovered by driving prospect- 
ing tunnels are of course excepted, and the apex in such case would be determined 
by raising a winze or shaft to the surface. The course of outcropping fissure veins 
can be ascertained usually by moderate and discreet outlay. The dip often changes 
as work progresses, and a knowledge of what the change may be seems not essential 
to defining the claim under existing laws. 

5. Virtually answered above. 

6. It has not as to such veins. 

7. I cannot understand how two parallel seams could have one outcrop. Two veins 
of different corners might unite and outcrop at point of union. I have known some 
contests in cases of this kind. 

8. I would suppose this question to apply to a case where one vein had two out- 
crops, not two veins with one outcrop. In this view no cut-off of original locator has 
come under my observation. 

9. None wider have come under my personal observation. I do not know the width 
established by local law or rules in the Comstock region. 

10. If width by local rules be restricted to the minimum authorized by law, *. e., 50 
feet, 25 feet each side, yes ; if width by local rules be expanded to the maximum, i. e., 
£00 feet, 300 feet each side, no, or very rarely, if the real outcrop be traced for any 
considerable distance and the location be directly taken. 

11. 1 do not know of any such practice under the law. I should regard the tolera- 
tion of such practice absurd. 

12. I do not see how B's location in the case supposed could cloud A's title in the 
least degree, unless B should prosecute work on vertical shaft to such depth as to cut 
A's vein and lay claim to it as a distinct vein. I do not see that even this could cloud 
A's title, but might result in trespass upon his property and. loss of his ore. But if in 
the case supposed B should cut a vein really distinct from that upon which A's claim is 
based, although outcropping in the surface ground of the latter, that B ought in jus- 
tice to hold his vein is consistent with the view which I expressed in my answer to 
second question in this title. I do not maintain that he could do so under existing 
statutes. This question applied to horizontal, or nearly horizontal veins or deposits, 
ox>ens a new field for discussion. Leadville, White Pine, Nevada, &c. from experience 
and observation should make full answer to the question. Without having given the 
subject much thought or attention, I am inclined to favor location in such case by 
acreage, as in case of coal lands, exterior boundaries of claims to be vertical planes. 

13. I cannot answer from knowledge. 

14. I think it is possible, and not difficult. 

15. Among others, Centennial mining district, Carbon County, Wyoming. By some 
40 or 50 miners and prospectors, committee appointed to draft laws, to bo presented 
at adjourned meeting. Officer, recorder elected by ballot; one book for record of lode 
and tunnel claims, one book for record of placer and ditch claims. 

10. Posting notice, setting forth date of discovery, name of discoverer and claimant 



PUBLIC LANDS. 553 

or claimants, course and distance claimed each way from point of discovery, followed 
by sinking shaft 10 feet or more on vein, fixing exterior boundaries to claim of sur- 
face ground, aud placing on record with district recorder. 

17. In some districts rules allow six months within which developments may be 
prosecuted and survey be made, copy of which survey is put upon record as supple- 
mentary to former record. The course or strike of vein in first record is frequently 
given as easterly and westerly, northeasterly and southwesterly, &c, and in record of 
survey definitely fixed as N. 23° 40' W., &c. I am not aware that any district rules 
presume to tolerate a change from original record, whereby could result infringements 
on claims made subsequent to first record and antecedent to survey of original locator. 

18. Not within my knowledge, although I have been advised of such result in Utah. 
There is no security against such frauds, except the honor (?) of the recorder. 

19. Emphatically yes, so far as district laws are concerned. That a decision of the 
United States Supreme Court as to the title of property worth $1,000,000 should turn 
upon what was at some particular time the whim of a majority of the prospectors and 
miners in any new camp seems absurd, yet such is the law. But as to record, no; I 
regard it as a matter of prime importance that record of mining claims be kept in 
mining districts, for convenient reference of miners and prospectors. It might be 
well, however, to require all district recorders to furnish transcripts, at stated inter- 
vals, to the register of the laud office within whose land district the mineral district 
is situated of all mining records not previously returned, the transcripts to be recorded 
in the land office in a book kept for that purpose, and then returned to the recorder 
of the mining district, each transcript to bear the certificate of the register that it is 
recorded, and to be filed in the recorder's office. The same end might perhaps be more 
directly compassed by requiring the prospector or miner applying for record to pre- 
sent the instrument of writing which he wishes to have recorded in duplicate, deposit 
the register's fee for recording, which, with one of the duplicate copies, certified as 
correct copy, it shall be the duty of the recorder to forward to the land office. The 
form of the first instrument to be recorded should be uniform throughout the country 
and established by law. 

20. Emphatically, no. I am opposed to all legislation which assigns to ministerial 
officers judicial functions, as 1 am to ail legislation which assigns to judicial officers 
ministerial functions. Under our system of government every man who feels himself 
injured in person or property should not, in my judgment, be deprived by law of re- 
dress through the courts. I doubt the advisability of leaving other land claims in 
contested cases absolutely to the United States land officers, nor do I believe they are 
so left. The interposition of a court of equity may at any time be sought, nor upon a 
proper showing would it be denied. 

21. I would do away with district laws and the authority of local customs entirely, 
and let the method of organizing districts, electing recorders, and keeping records, 
&c, be prescribed by statute. I would have all the conditions of tenure prior to pat- 
ent and prerequisites for patent definitely fixed by statute, and the same for all mineral 
districts of the country, unless, for grave reasons, local differences should require some 
different rules ; in which case the law and locus of application should be fixed by statute. 
As to following the dip beyond the side lines, suppose the dip 45° ; following the dip 
425 feet would pass the side line even at the maximum of 300 feet width. It would 
not seem advisable to me to stop progress to a greater depth, because the vertical side 
line is reached at such depth, the lower portion of vein being retained for outside 
locators, to be reached only on sinking 300 feet or more through unproductive ground. 
Upon allowance of greater width to original locators, still less advisable would such 
course be. In veins nearly horizontal, location by acreage, as before suggested, I think 
most desirable, and if such location be authorized the statute should prescribe the 
number of degrees in dip which shall be the line of demarkation between the two 
methods. 

22. Yes ', five years. 

PLACER CLAIMS. 

1. The proportion can scarcely be fixed, even approximately. The products of plac- 
ers are gold and soda ; the latter being in the form of crystallized sulphate. 

2. Somewhat familiar through applications for patents for property in which I am 
interested mainly. 

3. Reference to records of laud office recommended. 

5. Not from my knowledge so far as they are held for bona-fide purpose of mining. 

6. The law, in my judgment, should not sanction title to town sites through placer- 
mine location. 

7. I am not aware of such instance, unless it were at Leadville, Colo. 

8. No. 

9. I do not. 

Very respectfully, 

S. W. DOWNEY. 



554 PUBLIC LANDS. 

Testimony of A. T. Babbitt, cattle-grazier, Chegenne, Wyo. 

The questions to which the following answers are given will be found on sheet facing 
page 1. 

1. A. T. Babbitt, cattle-grazier, Cheyenne, Wyo. 

2. Two years. 

3. One quarter section ; homestead, and pre-emption. 

6. I regard the desert-land act for application in this Territory impracticable, as in 
no location that I know of is it possible to irrigate the whole of a section of land. I 
think that the irrigation of say one-third should be required. 

7. Pastoral, and so impossible of irrigation as to be unavailable for farming exten- 
sively. 

8. I do not believe it at all practicable for graziers to do a successful business on the 
basis of owning and fencing the land. In this region of severe winds stock must 
" drift or die." 

AGRICULTURE. 

1. Eainf all limited practically to two or three months. Early summer. But about 
three months, say June to September, exempt from frost. Water for irrigation limited, 
and irrigable area in exceedingly small proportion. 

2. Yes. 

3. None. 

4. Not to exceed one-fortieth. 

5. Oats, and probably wheat. No corn. Potatoes and hardy vegetables. 

6. Don't know. 

7. In our section the Wyoming Black Hills. 

10. As yet but a small proportion, and mainly by homestead and pre-emption. 

11. Few or none. 

12. Nearly all. 

13. It is practicable, and a section or more should be allowed. 

14. No. Yes. 

15. Twenty-five to thirty. 

18. Grazing has considerably reduced it. 

19. They usually fence say 100 acres or more for pasture. I do not think they can 
safely confine stock in winter storms. 

20. Yes, if it were safe. 

21. Black Hills. 

23. They destroy it if the land be at all heavily stocked. 

24. No. 

25. Cattle men respect one another's claims and rights. Sheep men are aggressive, 
and drive cattle men back. 

27. I believe the grazing as at present on the public domain a decidedly greater pub- 
lic benefit than any sum possible of realization from sale of land, even if it were safe 
or practicable to buy and fence. 

28. I think not. 



Testimony of Stephen W. Downey, attorney and coiinselor-at-law and Delegate in Congress, 

Laramie City, Wyo. 

Laramie City, Wyo., September 25, 1879. 

Dear Sir : I have the honor to invite your attention to some phases of the matter 
of timber cutting upon the public domain, the laws inhibiting or regulating the same, 
the rulings and regulations of the Interior Department thereupon, and the effect of 
such laws, rulings, and regulations upon the industries and interests of the citizens of 
Wyoming Territory. 

You are probably aware that Hon. Carl Schurz, Secretary of the Interior, has made 
the discovery and prevention of infractions of the law in this regard and the punish- 
ishment of offenders the object of special efforts. 

From the studious and watchful zeal directed toward the conservation of the public 
forest wealth, as manifested by the edicts, agencies, and acts emanating from that de- 
partment, have arisen grave apprehensions of unjust, oppressive, and impolitic ex- 
actions and restrictions upon the pursuits of our people, of which some appear to be 
without warrant in law, others not to have been contemplated by the national legis- 
lature upon the passage of the acts whose requirements are claimed to be enforced, 
and yet others to be clearly usurpations of the functions properly appertaining to the 
Navy Department. 



PUBLIC LANDS. 555 

In consideration of the latter fact I am specially led to make this communication to 
you, while having in view the general object of placing the matters herein considered 
before one or more of the Cabinet ministers in order that the fullest light may be shed 
upon the subject in case it should arise for the consideration or action of the Cabinet. 

I solicit your special attention to those phases of the question involving issues as- 
signed by law to the administration of your department. 

All such questions relating to felling and removing timber from the public domain 
as are now at issue between our people and the Interior Department appear to have 
been originally referred by law to the discretion of the Secretary of the Navy. Sub- 
sequent legislation has effected a partial repeal of such law, making special regula- 
tions in certain specified States and Territories, assigning the details of these regulations 
to the Interior Department, the most recent of which legislation expressly announced 
the repeal of former law only so far as relates to the specified States and Territories, 
thereby reaffirming the full force of the old statute as to all other States and Terri- 
tories. 

In order to a full statement and exposition of the case as regards the letter and spirit 
of the law, official action to be taken, and official discretion to be exercised, it will be 
necessary to advert to the provisions of the old statutes bearing upon the issue, to the 
provisions of subsequent legislation effecting modifications or partial repeal of the 
same, to the imperative wants of the people essential to civilized existence in Wyoming 
Territory, together with their sources of supply, and to the spirit of the laws and of 
the administration thereof by the government in the past, uniformly fostering the ex- 
ploration, settlement, and development of resources of the remote and unoccupied por- 
tions of the public domain. 

By act of Congress, approved March 1, 1817, sections 2458 and 2459, Eevised Statutes, 
the Secretary of the Navy is authorized to select, and the President to reserve from 
future sales, public lands producing live oak and red cedar, to be appropriated to the 
sole purpose of supplying timber for the Navy of the United States. Other sections 
of the same act provided for punishment of trespass upon timber thus reserved. 

By act approved February 23, 1822, the President is authorized to use the land and 
naval forces of the United States to prevent the destruction and removal of timber in 
the State of Florida, then public unorganized territory. 

By act approved March 2, 1831, entitled "An act to provide for the punishment of 
offenses committed in cutting, destroying, or removing live-oak and other timber or 
trees reserved for naval purposes," it is provided in section 1 in the most definite, 
sweeping, and comprehensive language that certain fines and penalties shall be im- 
posed upon any person convicted, first, of cutting or wantonly destroying, or aiding or 
procuring to be cut or wantonly destroyed any live-oak, red cedar, or other timber 
reserved pursuant to law for the use of the Navy ; second, of removing or aiding or 
procuring to be removed such timber so reserved without competent written author- 
ity, and for the use of the Navy ; third, of cutting or removing or of aiding or pro- 
curing to be cut or removed any such timber upon other lands of the United States 
with intent to dispose of, use, or employ the same for any other purpose whatever other 
than for the use of the Navy. It is further provided in section 2 of the same act that 
any vessel seized, having on board such timber so cut and removed for the purpose of 
transportation, with the knowledge of the master, owner, or consignee, shall be wholly 
forfeited to the United States ; and that the master of the vessel wherein such timber 
has been exported to any foreign country shall be fined not less than $1,000. The first 
and second sections of this act appear as sections 2461 and 2462 in the Revised Stat- 
utes ; the third section of the same act appears as section 4751 in the Revised Statutes, 
the words " the Secretary of the Navy " being substituted in the Revised Statutes for 
the words "the commissioners of the Navy pension fund," the Secretary of the Navy 
having been made " trustee of the Navy pension fund" by act approved July 10, 1832. 

Section 4751 Revised Statutes substantially the same, except the substitution above 
recounted, as section 3 in original act of March 2, 1831, is, in full, as follows, viz : 

"All penalties and forfeitures incurred under the provisions of sections 2461, 2462, 
and 2463, title 'The Public Lands,' shall be sued for, recovered, distributed, and ac- 
counted for under the directions of the Secretary of the Navy, and shall be paid over 
one-half to the informers, if any, or captors where seized, and the other half to the 
Secretary of the Navy for the use of the Navy pension fund ; and the Secretary is 
authorized to mitigate in whole or in part, on such terms and conditions as he deems 
proper, by an order in writing, any fine, penalty, or forfeiture so incurred." 

This act seems designed to be a substitute, in a great measure, for the act above 
referred to, approved March 1, 1817, except as to the first two sections of that act still 
retained in section 2458 and 2459 Revised Statutes. 

Before proceeding to subsequent legislation affecting the provisions of the later act 
or restricting their application I desire to comment briefly upon it, because it is that 
under which, by the rulings of the Interior Department, the main issue between cer- 
tain officers and agents of that department and the people of Wyoming has been 
raised. 



556 PUBLIC LANDS 

It appears evident from. the text that the act was designed to punish trespass upon 
the public timber lands, so far as thereby the sources of supply for the anticipated 
wants of the Navy might be abridged, and for no other purpose ; and that the Secre- 
tary of the Navy (originally the commissioners of the Navy pension fund) should be 
the sole judge of such abridgment, and exercise sole discretion as to what or whether 
any prosecutions should be instituted under the provisions of the act. 

That the institution of proceedings against offenders by officers or agents of the 
Post- Office Department, of the War Department, or of the Interior Department, or 
any otherwise, except by and under the directions of the Secretary of the Navy, was 
ever contemplated seems absurd when it is considered that the Secretary of the Navy, 
in whom alone the law, by express provision, fixes the power to # direct such proceed- 
ings, has also the power, by equally express provisions, to mitigate, in part or in whole, 
any penalty, forfeiture, or fine incurred. 

The supposition that this statutory law contemplated any vindication through the 
agency of the Secretary of the Interior, is sufficiently answered by the fact that the 
office of the Secretary of the Interior had not been created and did not exist at the 
time oi the passage of said act. 

The supposition that the powers and discretion given by the act to the Secretary of 
the Navy would have been given to the Secretary of the Interior, had such office then 
existed, is sufficiently answered by the fact that the office of Qommissioner of the 
General Land Office was created in 1812, prior to the passage not only of the act of 
1831 but also of the act of 1817, with powers and duties similar to those now pertain- 
ing to said Commissioner, but then in the Treasury Department, and to this officer or 
to the head of his department would have been assigned the discretion given to the 
Secretary of the Navy had the national legislature contemplated such interpretation 
of the law as is now sought to be put upon it by the Secretary of the Interior. 

The substance and strength of the law is the will of the enacting legislature. If 
the body of the act under consideration leaves any doubt as to the purpose of its 
passage, the title seems to set all doubt at rest : " An act to provide for the punish- 
ment of offenses committed in cutting, destroying, or removing live-oak and other 
timber or trees reserved for naval purposes." 

The grants made to the various divisions of the Pacific Railroad system rendered 
section 2461 Revised Statutes inoperative, so far as concerned timber procured for the 
construction of said roads. 

By act approved June 3, 1878, entitled " An act for the sale of timber lands in the 
States of California, Oregon, Nevada, and in Washington Territory" sales of timber 
lands are authorized under certain regulations, and section 4751 rendered inoperative 
in the States and Territory named. 

By act also approved June 3, 1878, entitled "An act authorizing the citizens of Col- 
orado, Nevada, and the Territories to fell and remove timber on the public domain for 
mining and domestic purposes," seciion 4751 Eevised Statutes, seems to have been ren- 
dered inoperative by implication, though not expressly, as to all mineral lands in the 
States of Colorado and Nevada, and in the Territories of New Mexico, Arizona, Utah, 
Wyoming, Dakota, Idaho, and Montana applying to all persons except railroad cor- 
porations, Nevada alone receiving the benefits or burdens, whichever it be, of both 
acts approved June 3, 1878. 

Railroad corporations being expressly excluded from the provisions of the latter act, 
if such exclusion be constitutional, are necessarily excluded from the provisions of the 
third section, as well as of the first and second sections, and as to such corporations sec- 
tions 2461 and 4751 Revised Statutes would still be in force, both upon mineral and 
non-mineral lands. Therefore, if I am right in my conclusions above in regard to the 
construction of those two sections, actions against railroad corporations for taking 
timber from the public domain in Wyoming Territory for the construction or mainte- 
nance of their roads can legally be instituted by and under the directions of the Sec- 
retary of the Navy alone. 

In speaking of the act approved June 3, 1878, 1 shall refer to the one named second 
in order above, that being the one which applies to Wyoming. 

In the "Rules and regulations prescribed by the Secretary of the Interior" pursu- 
ant to said act, in a circular issued from the Department of the Interior, General Land 
Office, dated August 15, 1878, the Secretary, among other things preliminary to the 
rules, says : " To the end that the mountain sides may not bo left denuded and barren 
of the timber and undergrowth necessary to prevent the precipitation of the rainfall 
and melting snows in floods upon the fertile arable lands in the valleys below, thus 
destroying the agricultural and pasturage interests of the mineral and mount aiuous 
portion of the country," &c. (See circular.) 

However solicitous the Secretary may be to guard the interests of the agriculturists 
and herdsmen of Wyoming against the fatal consequences of their own vandalism, 
and however reasonable such a setting forth of the grounds and cause of action may 
be, applied to other regions, it seems absurd in its application to Wyoming, the great 
body of whose lands, by the decision of the same Interior Department, rendered prior 



PUBLIC LANDS. 557 

to the issuance of said circular, have been held to be u desert lands " within the mean- 
ing of the " desert-land act," approved March 3, 1877. Yet Wyoming alone, of all the 
eastern slope of the Rocky Mountains, has been chosen by the department as the field 
of active operations for the repression of timber cutting upon the public domain. 

The first rule in said circular announces that section 2461, Revised Statutes, is still 
in force, and that trespassers upon lands not mineral " will be prosecuted under said 
section." Under whose directions mil they be prosecuted? Is the Secretary of the 
Interior the mouth-piece by which the discretion of the Secretary of the Navy is to be 
promulgated ? If section 2461 is in force in Wyoming as to all lands not mineral, sec- 
tion 4751 is also in equal force, there being nothing in the act of June 3 to the con- 
trary. Yet under such rulings, through officers or agents of the Interior Department, 
a demand has been made upon railroad-tie manufacturers, lumber manufacturers, and 
wood dealers for a fine, forfeiture, or stumpage tax for timber taken from the public 
domain, or alleged to have been so taken, prior to June 3, 1878. Through the same 
agency a demand has been made upon lumber manufacturers for a sworn statement of 
the extent of trespass by them committed, as a basis for compounding the offense, ac- 
companied by intimations or menaces of some undefined evil to befall upon neglect or 
refusal to furnish such statement ; all of which demands, as well as settlements -made 
pursuant to acquiescence therein, and by officers or agents of the Interior Department, 
I claim to be without warrant in law. 

Through the same agency an order has been served upon tie makers, lumber man- 
ufacturers, and wood dealers in Wyoming, inhibiting all further cutting or removal 
of timber, of whatever character or dimensions, from the public lands by them, 
whether such lands be mineral or non-mineral, and whether such timber be dead or 
alive. With this order of inhibition has been announced the adoption as a rule of 
action of the principle that the wood dealer, lumber manufacturer, and tie maker is 
each barred from the pursuit of his vocation by the act approved June 3, 1878 — i. e., 
that John Doe being a merchant may shoulder his axe, go ancfr cut from the public 
forest such timber as he may need for fuel, fencing, and buildings, provided the same, 
dead or alive, be not less than eight inches in diameter, or that he may hire the same 
to be done for him, provided the mediate agent be not a wood dealer or lumber man- 
ufacturer ; but that Richard Roe, a wood dealer, or Henry Jones, a lumber manufact- 
urer, may not anticipate the wants of John Doe and prepare to supply his wants on 
demand, because this would savor of speculation. Such ruling and action based there- 
upon I claim never to have been contemplated by the national legislature upon the 
passage of the act. All organized and systematic business is speculative so far as it 
is based upon anticipated want. The more accurate anticipations of want are, the 
more successful will business be. Such a departure from this principle as the ruling 
above stated enjoins is a return toward the primeval and barbarous state, in which 
each man must provide for his own wants by the labor and skill of his own hands. I 
do not know whether or not the agent of the department has transcended his instruc- 
tions in announcing this absurd principle and acting upon it, but I do know that the 
industries mentioned are at a dead standstill, checked by the order referred to, and 
this with the knowledge of the Commissioner of the General Land Office. At the 
same time no ban is laid upon similar pursuits in the State of Colorado, just south of 
us. If any credence can be placed in the public journals, a dozen or more saw-mills 
have been put in operation within a year in the vicinity of Leadville, all manufact- 
uring lumber from timber taken from the public domain. Homes are warmed, food 
prepared, and ores reduced there by fuel taken from the public forests, furnished in 
whole or in part by wood dealers and lumber manufacturers pursuing their vocation. 
Can it be that these operations carried on there, where are operating alert capitalists 
from San Francisco, New York, and London, are less speculative than here, where 
lumber manufacturing has been, and but for the present ban put upon it would now 
be, carried on to a limited extent, and exclusively to supply the ordinary home de- 
mand ? Whatever the general and ultimate rights of the issue, such discrimination 
against Wyoming as between it and Colorado cannot be justified. 

I do not institute this comparison desiring Colorado to be placed under the same 
ban. On the contrary, I believe the privileges and immunities there accorded and en- 
joyed to be in full harmony with the letter and spirit of the law. 

Colorado has made great and praiseworthy progress within the past fifteen years, 
adding much to the credit and wealth of the nation ; a progress which would have 
been utterly impossible without, and is largely due to, repeated and constant viola- 
tions of the inhibitions of section 2461 of the'Revised Statutes, according to the in- 
terpretation of those inhibitions by the Department of the Interior. Many of the 
mineral products of Gilpin County, the first great mining center, could not be utilized 
on account of their refractory nature until the inauguration and successful operation 
of the Boston and Colorado Company's Smelting Works, at Black Hawk, by Professor N. 
P. Hill, now United States Senator from that State. These works probably did more 
to establish the worth of Colorado minerals and the success of Colorado mining, and 
consumed more fuel procured through violation of the inhibitions of section 2461 of 



558 PUBLIC LANDS. 

the Eevised Statutes, than any three other reduction works of Colorado. Nine-tenths 
of all the stamp-mills or other reduction works have been run by steam power, and 
the fuel procured in the same way. Nine-tenths, rjrobably ninety-nine hundredths, of 
all the buildings erected prior to June 3, 1878, were constructed wholly or in part of 
lumber obtained by the same violation. To say that such use of the timber upon the 
public domain was not contemplated, and was wrong and criminal, is to say that the 
progress made in the development of the resources of Colorado, the growth in wealth, 
the increase in population, the establishment of homes, the founding of institutions 
of learning, and the building of churches were not contemplated, and were wrong and 
criminal. Yet all this has been carried on for the last fifteen years, under the eye and 
with the full knowledge and consent of Congressmen, Senators, Cabinet ministers, 
Vice-Presidents, and the President of the United States, who have from time to time 
visited Colorado. With none of these industries, none of this progress, none of this 
settlement and increase of population, the timber of Colorado might as well have 
been put in the moon, so far as any value it would have possessed to the United States 
government or anybody else. It was valuable precisely for the use to which it has 
been devoted, and for no other use. 

The timber of Wyoming is valuable alone for use within Wyoming, or in regions 
immediately adjacent thereto, and sinks in value as that use is obstructed. 

It is a fact greatly to be regretted that far more timber is annually blasted and de-* 
stroyed by the ravages of forest fires than is cut up for use for all purposes to which 
it is devoted. While I write a fire is raging in the Medicine Bow Mountains, some 
thirty-five or forty miles to the west of Laramie City, which has already swept through 
thousands of acres of the heaviest timber, enveloping a region of more than 1,000 
square miles in dense clouds of smoke. The trees thus destroyed in a few weeks would 
have kept all the lumber manufacturers, tie makers, and wood dealers in this portion 
of the Territory occupied for years in supplying the demands of the people, while 
they, upon the order x>f the agent of the Interior Department, are standing idly by, 
witnessing the destruction by conflagration of what they are not permitted to devote 
by their industry to the uses for which it is chiefly valuable. Such forest fires are of 
almost annual occurrence. In many cases the limitation of their spread is dependent 
upon the presence of timbermen, who, when present, are able to take advantage of 
glades and cut off the progress of the flames. I am informed by Mr. C. H. Bussard, 
who has been one of the leading tie manufacturers in this region, that if he had been 
engaged, with his usual number of employe's, in the region of the present fire, he could 
have checked it before extensive damage could have been done. 

The idea, more or less prevalent in the East, that tie-making and lumber manufact- 
uring in the Rocky Mountains is a kind of royal road to wealth, is altogether a mis- 
take. Few engaging in such pursuits gain more than a livelihood ; as many fail 
utterly ; and, like the majority of their patrons engaged in other pursuits, they have 
nothing to depend upon but their industry and energies. With few exceptions, we 
are all struggling along on the ragged edge of poverty for an existence ; a condition 
not by any means unique or unusual in new and sparsely settled regions. We are 
surrounded by many varied and extensive resources, teeming with the germs of fu- 
ture wealth, but yet mainly undeveloped, and we are without the means for present 
development. We need the fostering, not the repressive, hand of government. 

If section 2461, Eevised Statutes, is to be construed strictly as maintained by the 
Interior Department, many high officers of the government, upon impartial prosecu- 
tion, would fall under like condemnation as the citizens of Wyoming. The War De- 
partment has violated and continues to violate, in the most marked and open manner, 
its inhibitions. In Wyoming alone, there are some ten or eleven military forts, con- 
structed wholly or in part of timber felled and removed in violation of those inhibi- 
tions. The forts which are or have been occupied have been or still are supplied 
with fuel by contractors — violators of the same inhibitions. It is no answer to say 
that such employment of timber is for government use, for the language of the stat- 
ute is : " If any person shall cut, or cause or procure to be cut, or aid, assist, or be 
employed in cutting, any live oak, or red cedar trees, or other timber on, or shall re- 
move, or cause or procure to be removed, or aid or assist or be employed in removing, 
any live oak or red cedar trees or other timber, from any other lands of the United 
States, acquired or hereafter to be acquired, with intent to export, dispose of, use or 
employ the same in any manner whatsoever other than for the use of the Navy of the 
United States, every such person," &c, &c. The building and heating of a United 
States military fort upon the plains is certainly an employment other than for the use 
of the United States Navy. Upon a strict construction any person, be he Secretary 
of War or General of the Army, who cuts, or removes, or causes or procures to be cut 
or removed from the public domain timber for the use of such forts is obnoxious to 
all the penalties imposed by the statutes as much as the humblest squatter who con- 
structs his rude hut or cabin. An officer of the government, even the President him- 
self, has no more right to violate law and do an act therein characterized as felony 
than has a private citizen. The War Department is not alone in the condemnation. 



PUBLIC LANDS. 559 

The judges of the United States courts, the United States attorneys, United States 
marshals, registers and receivers, and special agents of the Interior Department are all 
sheltered by roofs and warmed by hearths supplied by violation of the said inhibi- 
tions. The very exclusiveness of the use reserved in the act of March 2, 1831, no pro- 
vision being made for any other department of the government, tends to establish the 
interpretation of the act which I first gave above, and confirms the ruling that what 
fines or penalties, or whether any, shall follow infractions of said inhibitions rests 
wholly with the discretion of the Secretary of the Navy, and that the exercise of that 
discretion should depend upon whether or not sources of supply for the anticipated 
wants of the Navy have suffered abridgment. 

To encourage the development of latent resources, the increase of immigration, and 
the expansion of civilization the government has wisely sanctioned the most unre- 
strained use of its agricultural resources, its water supply, and its mineral wealth. It 
is difficult to see upon what principle pioneer citizens should be restrained from enjoy- 
ing the ample timber resources to the extent required for domestic purposes. Mineral 
wealth, once exhausted, offers no hope of restoration by reproduction where exhausted. 
Quite the contrary is it with timber wealth. Portions of timber land in Colorado, 
entirely denuded in the early days, are now covered by a fine growth of promising young 
trees. The timber of Wyoming would not be exhausted by the uses of the people in 
ten generations. Cut it all off, and it will be replaced in three or four generations by 
natural growth. 

I have alluded incidentally to the use of timber for railroad purposes. A few words 
directly to that subject : The government thought it expedient, in order to secure the 
construction of the Union Pacific road, not only to devote all necessary timber from 
the public lands to that purpose, but also to subsidize the enterprise by other grants 
of large proportions. Is the maintenance of the road, with the increased facilities of 
communication which it has brought, and the consequent arrangement and ordering 
of commercial transportation, of less importance to the government and the people 
than the construction ? Where, if not from the public domain, shall ties be obtained? 
Would it be the exercise of a wise discretion to compel their purchase from the Alle- 
ghany Mountains and transportation to Wyoming to keep up a road-bed along or near 
the forests here ? All cutting of ties upon any terms from public lands in Wyoming 
is at present banned by order emanating from the Interior Department, whether with 
or without warrant of law. Should the question come for decision to the Secretary of 
the Navy, where I think the law clearly places it, as I have before indicated, would 
absolute prohibition upon any and all terms be discreet governmental policy ? The 
United States has an important, direct interest in the economical and successful opera- 
tion of the Union Pacific Railroad, which both justice and discretion dictate should be 
permitted, on some reasonable terms, to procure ties from the forests of Wyoming. 
Some portions of the timber lands are within railroad limits, and where these are 
yet unsurveyed the company, under present rulings, is practically barred from its own 
as well as from government lands. At the same time a large amount of fuel has been 
taken from railroad lands, bcth for private and government use, and no objection has 
been made by the company. In view of these facts the prohibition now sought to 
be put in force seems impolitic, and can scarcely be characterized as magnanimous. 

The act of June 3, 1878, is objectionable even with the most liberal construction. 
That agriculturists and denizens of towns adjacent to timber growing on m, "veral lands 
should be accommodated with all necessary timber for fuel, building, and other do- 
mestic purposes, while similar classes adjacent to timber growing on non -mineral lands 
should be debarred from like privilege, is not based upon any fair, sound doctrine. 
In the first section of the act the words " said lands being mineral and not subject to 
entry under existing laws of the United States, except for mineral entry," should have 
been omitted ; and in the second section the word " mineral," before the word " land," 
should have been " timber." The act is faulty in other respects, chiefly in its uncer- 
tainty and in the possible susceptibility of the interpretation which has been put upon 
it. The faults in the text of the act are, however, as a matter of course chargeable 
only to the enacting legislature, and it is to be hoped will be remedied at the next ses- 
sion of Congress either by amendment or repeal of the present and the enactment of a 
better statute. 

During the late extra session of Congress, at an interview with the Secretary of the 
Interior, I represented to him the matters and facts herein considered pretty fully, 
bringing to his attention many points from this omitted, at the same time presenting 
a written request for his reconsideration of certain features of the " rules and regula- 
tions " promulgated from his department, stating in what .particulars changes seemed 
desirable, and giving reasons therefor. 

The features which, according to the announced instructions of the special agent of 
the department in Wyoming, would work evil to the citizens and which are especially 
complained of are : First, the prohibition of all persons from felling or removing all 
timber, dead or alive, less than eight inches in diameter; and second, the prohibition of 
mediate operators, such as lumber manufacturers, wood dealers, &c, from prosecuting 



560 PUBLIC LANDS. 

their vocations for supplying the citizens of the Territory by felling and removing 
timber for building and other domestic purposes. 

The grounds of complaint of the first feature are, that there are immense tracts of 
dead timber, suitable for fuel and fencing, less than 8 inches in diameter which is 
passing into decay ; that thousands of acres of land have been taken up by actual 
settlers, through pre-emption, Lomesteading, under the desert-land act or otherwise, 
which lands have no timber for fencing or building, Settlers upon these lands have 
had recourse to the mountain forests for building timber and fencing poles. These 
settlers must fence their claims or abandon them. A prohibition of the privilege of 
obtaining fencing poles, whatever the design, results practically as bad faith on the 
part of the government. The fencing poles ordinarily obtained and used range from 
4 to 7 inches in diameter, averaging about 5£. Trees of such size, for such use, are 
more valuable than those of larger size. 

Acts of Congress and rulings of governmental departments cannot alter established 
principles of political economy, among which none is more generally acknowledged and 
none more readily commends itself to quick discomment than the policy of reasonable 
assortment and division of labor. The average settler does not transport a saw-mill 
among his chattels. He must purchase the lumber for his dwelling from him whose 
regular occupation is that of a lumber manufacturer. The average baker is not an 
axman, he must purchase his fuel from the woodman or collier. I have already re- 
marked upon this feature of the ruling, and need not enlarge upon it. 

At the same interview with the Secretary, I asked and received a promise that, 
whatever course he decided upon in regard to the general, ultimate issue, no action 
should be taken or restrictive measures instituted against the citizens of Wyoming 
that were not also taken or instituted against the citizens of other Territories and 
States where the same laws are in force. According. to my recollection, Hon. N. P. 
Hill, United States Senator, and Hon. J. B. Belford, Representative of Colorado ; Hon. 
Martin Maginnis, Delegate from Montana, and other gentlemen were present and 
participated in the interview. About the same time I had an interview with Hon. 
Edgar M. Marble, Assistant Attorney-General, Department of the Interior, and several 
interviews with Hon. J. A. Williamson, Commissioner of the General Land Office, upon 
the same subject. I refer to these several interviews here merely to show that I took 
what I conceived to be proper and reasonable steps to avert impolitic and oppressive 
restraint menacing the industries of our people by a fair presentation of the case to 
the department moving for such restraint before making any appeal to you or to the 
Cabinet generally. The result of my efforts, both as to promises secured and subse- 
quent action, is shown in the foregoing pages. 

It is not my purpose to assail herein the sincerity of the honorable Secretary or of 
any officer or agent of the Interior Department. I am prone to believe the action 
above set forth to be the consequence of a misconception of the real merits of the 
case, but on that account none the less ill-advised and impolitic, and in effect upon 
the citizens of Wyoming none the less unjust and oppressive. 

I therefore ask, in behalf of the people whom I represent, a candid consideration 
hy you of the letter and spirit of the laws, and of the facts and issues which I have 
presented, and that you take such official action, as head of the Navy Department and 
as Cabinet minister, for the relief of the citizens of Wyoming from their present dis- 
tress as the laws and facts in the case and the history and philosophy of the spread 
and development of civilization in the country shall seem to warrant. 

If the interpretation which I have put upon the act of March 2, 1831, sections 2461, 
2462, and 4751, Revised Statutes, seems to you just, reasonable, and conducive to the 
growth, development, and general prosperity of the regions adjacent to the timber 
lands of Wyoming, where alone such timber is valuable, and to which growth and 
development it is naturally tributary, I ask that, in the capacity of Secretary of the 
Navy, you signify in some effective manner the retention and exercise of the lawful 
functions of your office to the prevention of usurpations of the same by officers or 
agents of the Interior Department, and that you so exercise the discretion given you 
in said act as to foster the prosperity of this region. 

If the interpretation of the act approved June 3, 1878, by the Interior Department 
seems inconsistent with the purpose of the national legislature upon its passage, and 
not conducive to the interests of the people for whose benefit it was passed, I ask 
that, in the capacity of Cabinet minister, you use reasonable efforts to secure a modi- 
fication of the interpretation and rulings and orders based thereupon. 

Finally, I ask, as a courtesy, that you communicate to me, at as early a day as 
practicable, your views and proposed action, if any, upon the matters herein sub- 
in itted. 

I have the honor to remain, with much respect, sincerely yours, 

S. W. DOWNEY, 

Hon. R. W. Thompson, 

Secretary of the Navy, Washington, D. C. 



PUBLIC LANDS. 561 

Testimony of George Ferris, stock raiser, Fort Steele, Carbon County, Wyoming. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1. 

Fort Steele, Carbon County, Wyoming, 

November 19, 1879. 
Respected Sir : Your circular with questions in regard to the public domain has 
been carefully read, and herewith find a few answers : 

1. George Ferris, on Platte River, 12 miles below Fort Steele ; stock raising. 

2. Fourteen years. 

3. Have sought to acquire title to land, but price was too high ; land is not sur- 
veyed. 

AGRICULTURE. 

1. Climate dry and cold ; rainfall very light ; length of seasons five months ; snow- 
fall light in the lower valleys, heavy in the mountains, very often 10 feet in depth ; 
supply of water is ample in most of the valleys. 

2. Rainfall mostly in May and June and very limited ; high waters in May and 
June. 

3. There are no crops raised here without irrigation. 

4. Farming will always be very limited in the southern and middle portions of the 
county. 

5. Wheat, barley, oats, and most of the hardy vegetables. 

6. Have not had any experience in irrigation. 

7. Platte River and its tributaries. 
10. But little water utilized. 

12. Nearly all is pastoral lands. 

13. It is, in amounts not to exceed 10,000 acres. 

14. It should be limited to 10,000 acres, and such laws passed as to prevent parties 
from acquiring title to more than the amount stated. The law should, be so enacted 
that in case parties fell heir to lands, thereby giving them an excess of 10,000 acres, 
the excess should be sold within one year's time. 

15. Twenty-five acres. 

16. Four hundred head. 

17. Have no idea. 

18. But little changed. 

19. But little fencing. Yes. 

20. Yes. 

21. Platte River and its tributaries. 
24. No. 

26. Cattle 50 to 20,000 ; sheep up to 3,000. 
28. But little surveyed land at present date. 
Yours, respectfully, 

GEO. FERRIS. 



Testimony of Edivard Ivinson, president Wyoming National Bank, Laramie City, Wyo. 

Laramie City, Wyo., November 13, 1879. 
Hon. Thomas Donaldson, Public Land Commissioner, Washington, D. C. : 

Your circular sent out under letter dated September 16, 1879, reached me sometime 
since. Upon careful consideration of questions therein presented, to which answers 
are severally required, and in view of the limited practical experience which I have 
had in other fields of industry, I have decided to confine my replies to the timber 
business, answering in order to the questions presented in circular. 

1. The plain lands are almost entirely devoid of timber, while the mountainous dis- 
tricts are in the main well timbered, principally with evergreen trees, consisting of 
pine, spruce, fir, hemlock, and cedar; with aspen, cottonwood, and willow in the lower 
gulches, and being of slower growth than the timber in regions less elevated above 
sea-level. The percentage of choice lumber produced is very small, not because it is 
less durable than eastern lumber of the same woods, but because more knotty, windiel 
in grain, and hence less susceptible of fine finish. For floors of bridges, stores, mi- 
carpeted public offices, bar-rooms, &c, native flooring is said to outwear eastern floor- 
ing, even walnut and ash. 

2. Few trees have been planted in this Territory, except for ornamental and shade 
trees, and these are for the most part native forest trees. 

3. In my judgment the government timber lands of the Rocky Mountain region 
should not be disposed of to purchasers at the present time, but should be held by the 

36 L C 



562 PUBLIC LANDS. 

government for the use of settlers upon agricultural lands as required by them, as 
inducements to settle and improve adjacent regions, which lack many attractions 
possessed by eastern prairie lands, and present to settlers maDy asperities from which 
more eastern regions are free. Strictly clear lumber, as before intimated, is produced 
here only in very limited quantities, large quantities of eastern lumber being im- 
ported for the use of our people. Exportation of the Rocky Mountain lumber is 
impracticable from the fact that there is no demand for it abroad at the necessary 
cost of manufacture here, increased by cost of transportation. It is therefore only 
available for the use of settlers in the regions near the mountain forests, and for the 
industries and enterprises in which they are engaged. A division or parceling of the 
timber lands among the settlers, by grant, purchase, or otherwise is impracticable, the 
timber being aggregated in large tracts at an average distance of probably twenty-five 
miles from settlers' homes, precluding that constant supervision essential to the protec- 
tion of individual property rights in newly and sparsely settled regions. Parties engaged 
in the mining and reduction of ores, and settlers on tracts immediately adjacent to tim- 
ber lands, would have inducements to purchase in small lots. Apart from these, ex- 
cept for speculative purposes, there are practically no inducements to purchase tim- 
ber lands. Regulations for parceling and selling would foster just the speculations 
which the Interior Department professes to have been guarding against during the 
past year. If the government determines upon allowing no timber to be used from 
the public domain without the return of revenue, some discreet regulations for the 
payment of royalty would, in my opinion, be more conducive to the interests of the 
government, and of the people in this region, than any regulations for the parceling 
or sale of lands. 

4. No; not so far as Wyoming is concerned, but if the government determines upon 
selling the timber lands, a close classification of timber lands, both as to character and 
quality of timber and as to the amount borne per acre, would be not only expedient 
but necessary to an equitable disposal. 

5. There is a second and thrifty growth both in districts burned over and in those 
chopped off. Could fires be stopped entirely the timber would be sufficient to last for 
the ordinary purposes of the region for ten generations. Cut it all off and it would be 
restored by spontaneous growth in three or four generations. 

6. The origin of forest fires is difficult to ascertain in many cases. Very extensive 
fires in Northern Colorado this season have been started by the Ute Indians, destroying 
more timber probably than has been cut in Wyoming since its first settlement for all 
the ordinary uses of civilized life. Other very destructive fires are kindled through 
the wanton vandalism or culpable negligence of tramps, hunters, and travelers ; yet 
others are started by lightning flashes. The timber annually used is probably not ten 
per cent, of that annually destroyed by fire. In my judgment heavy penalties should 
be imposed by law upon any person who starts a forest fire even by culpable neglect. 
Proof of guilt would be difficult, but a few examples upon clear proof would have a 
salutary effect in deterring others from the commission of similar offenses. 

7. Depredations for the uses of life, amounting to infractions of law, have, in my 
opinion, been made very rarely if at all in this part of the country. Section 2461 of 
the United States Revised Statutes, under the provisions of which it is proposed by 
officers of the Interior Department to punish depredators, seems to be better remem- 
bered than section 4751, which is part of the same act of Congress, approved March 2, 
1831, entitled " An act to provide for the punishment of offenses committed in cutting, 
destroying, or removing live oak and other timber or trees reserved for naval pur- 
poses." The last-named section provides that no suit shall be brought for fines, pen- 
alties, and forfeitures incurred under section 2461, and other sections of the same act 
of Congress, except under the direction of the Secretary of the Navy, who is expressly 
authorized to mitigate, in whole or in part, fines, forfeitures, and penalties so incurred. 
At the time of the passage of the said act the Interior Department had not been cre- 
ated, but the office of Commissioner of the General Land Office had been created in 
1812, with similar functions to those now pertaining to that office, being then a bureau 
of the Treasury Department. To the Commissioner of the General Laud Office would 
have been given the discretion upon timber depredations and the punishment thereof, 
by the said act of Congress, instead of to the Secretary of the Navy, if the view now 
promulgated by the Interior Department had then obtained with the Congress that 
enacted the law. The Rocky Mountain timber regions were scarcely known at the 
time of the passage of the act in question, but the live oak and red cedar timber of the 
Gulf region were suffering depredations by speculators, and the evident design of the 
act was to punish infractions sO far, and only so far, as the same should deplete the 
sources of supply for the anticipated wants of the Navy. Unless it can be shown that 
the timber here used in the building of homes, in the fencing of farms, and the supply 
of fuel (the two latter being taken mainly from the dead timber), has cut short the 
sources of supply for the anticipated wants of the Navy, I am not aware of infractions 
of law through forest depredations for the uses of civilized life. No legislation, in my 
judgment, is necessary to prevent such use of timber. On the contrary, it should be 



PUBLIC LANDS. 563 

as free as the grass on the plains for the fattening of herds, the water of the streams 
for refreshing the soil, and the mountain elk for food. 

8. The custom is to cut and use such timber from the forests of the public domain as 
is required for building, mining, fencing, and oi her industrial pursuits. The same opin- 
ion obtains relative to the ownership of felled timber as is held in regard to gold taken 
from placer ground, quartz from lodes, grass cut from plains converted into hay for sale 
to the government, and others, to wit : that it is and of right ought to be the property 
of him whose industry has created the value. The business of tie-making, lumber 
manufacturing, wood-chopping and the delivery of same to consumers in this Rocky 
Mountain region, are no royal roads to wealth, but constitute some of the few fields of 
enterprise upon which industrious pioneers can win a livelihood. Their relation to 
the general government is not unlike that of the self-exiled passengers of the May- 
flower to the home government of England when they stood amid the primeval for- 
ests of Massachusetts. The British King and court of London then held as eminent 
domain over those forests as the American President and Cabinet at Washington now 
holtl over the forests of Wyoming. Had the same ban there and then been put upon the 
wood mans ax that seeks to guard our forests here, the fathers of American liberty 
would have found therein graver cause for rebellion than is recorded in the pages of 
history. 

9. The enforcement of restrictive laws upon the use of timber on the public domain, 
except in maritime parts of the country, would seem to pertain to the Department of 
the Interior, rather than to the Department of the Navy ; if indeed such laws and 
their enforcement are deemed politic. Believing such restrictions to be impolitic, un- 
just, unnecessary, and oppressive, and in their rigid enforcement certain to result in 
the restriction of the settlement, growth, development, and prosperity of regions ad- 
jacent to the Eocky Mountain timber lands, where and for which this timber is alone 
valuable, I should regard the least rigid enforcement of such restrictive laws as the most 
desirable administration. 

With much respect, your obedient servant, 

EDWARD IVINSON, 
President Wyoming National Bank. 



Testimony of E. Nagle, merchant, Cheyenne, Wyo. 

Hon. Commissioner Public Land Office, 

Interior Department, Washington City, D. C. : 
Dear Sir : Inclosed circular handed me through Hon. Thomas Sturgis, this city, 
with request to reply. Hereto I have the honor to attach answers in part, applicable 
to pastoral land embraced in the southeastern portion of Wyoming Territory. 
Very respectfully, yours, 

E. NAGLE. 

AGRICULTURE. 

3. None. 

4. Not sufficient water to cultivate over one acre to each 100 acres. 

5. Nothing excepting hay and a few early vegetables. 

7. Limited supply of water in this county for irrigation, excepting a few miles on 
the Laramie River and North Platte. 

10. Very little land taken up in this country ; none for cultivation excepting for hay 
lands. 

12. Nine-tenths, exclusive of the timber and mineral land. 

13. It is not practicable to locate homestead or pre-emptions on these lands except 
for grazing purposes. Any pre-emption granted should grant at least 25 acres of land 
to each head of cattle the pre-emptor may own, with privilege to pre-empt extra for 
the increase of his herd. His taxable number would not give land enough from the 
fact that property is not taxed over 60 per cent, of its number or value in this section. 
If pre-empted he should be allowed to pre-empt 25 acres per head he may actually 
own and have on the land at time of filing his intentions, and also 15 to 25 acres per 
head as a limit to his right to increase his herd. The price must be nominal, with a 
reasonable time allowed for the taking up of his location and patent for the land. The 
cattle business will not admit of high-priced land, and it is doubtful if it can be suc- 
cessful on all sections at any price if title is granted for nothing. 

14. It will be disastrous to the cattle interest and the Territory to put these lands 
into market excepting to actual occupants, and then should be limited to the number 
of head of cattle, sheep, or horses he may actually own or have in his control. 

15. This can be answered indefinitely "only. Reason: that pre-emptors or locators 
will probably be required to locate in solid tracts that he may now be grazing upon ; 



564 PUBLIC LANDS. 

for instance, a person owns 50 head of cattle and has a right to locate 25 acres per 
head, this makes but 1,250 acres, which if taken on valley or bottom land, he will get, 
say one-half of choice grass lands, while a party owning 5,000 head, at 25 acres per 
head, gives 125,000, and may not get 500 acres of choice bottom grass lands and several 
thousand acres which is of no value at all for any purpose whatever. I fix the entire 
county on a basis of 25 acres per head, while the best grass or meadow lands, which is 
limited, will not require over 10 acres. But the millions of acres of upland are of no 
value unless a portion of bottom lands can accompany them for hay purposes. 

18. Grass is diminishing by grazing and tramping of stock. 

19. Do not fence. It will be an experiment to fence the cattle ranges. Opinions 
differ in regard to fencing. Locations are different; some can fence without fear of 
loss, while others will probably prove fatal. 

20. Herds will be improved from the fact that it will be the best interest of the 
grower. 

21. Limited ; large tracts are too far from water to graze on. 

24. Sheep and cattle will not graze on the same lands at the same time. 

27. I deem it to the best interest of the stock growers at present for the lands to 
remain as they are ; but if the government desires to part with the title to these lands 
they should be sold at very low price — say 5 cents per acre — to actual occupants only 
or by pre-emption, allowing each occupant to locate his present range as near as pos- 
sible, conflicting rights or disputes to be settled by the land office; a law compelling 
locators to join fence and pay each their equitable proportion ; no damages to be 
allowed for trespass during storms in winter ; the lands taken by sections where sur- 
veyed in direction and location as his present ranch or claim ; the surveyor- general of 
the Territory to set aside what is to be classed as timber and mineral lands from the 
pastoral lands where the lands are surveyed ; where unsurveyed, they to be classed 
by the surveyors at the time of making the surveys. 

If the government desires to derive revenue only, then allow occupants to locate the 
same as by pre-emption, giving them the privilege to pay for same at a set price or 
pay an annual rental per acre, giving a lease for not less than fifteen years or over 
twenty years. 

I think the most equitable mode of rental will be to tax each person so much annu- 
ally per head for cattle running at large on the public domain ; at the same time ex- 
tend the right to location or pre-emption to those who may choose to avail themselves 
of the privilege to purchase. 

Timber lands should never be sold in any manner ; title should remain with the gov- 
ernment and give away or sell the timber to occupants of the Territory only. 



Testimony of William K. Sloan, mining, smelting, charcoal, and lumber manufacturer, Mil- 
liard, Uintah County, Wyoming. 

The questions to which the following answers are given will be found on sheet fac- 
ing page 1. 

1. Wm.K. Sloan, Hilliard, Uintah County, Wyoming; mining, smelting, charcoal, and 
lumber manufacturer. 

2. Seven years. 

3. I have. By pre-emption and under the desert-land act. 
5. Have had no difficulty in procuring title to my land. 

7. The conformation of this county is hilly in the central and eastern portions and 
mountainous in the northern and southern parts ; principally pastoral in the central, 
interspersed with coal fields ; in the north and south parts a stunted growth of timber ; 
in the mountains mineral in small quantities has been discovered in nearly all the 
mountain ranges ; the agricultural portion is very small. 

AGRICULTURE. 

1. Long, cold winters; short, cool summers; little rainfall ; frost to July 1 and from 
September 1 with few exceptions. 

2. The larger streams are usually at their highest stage iu June, and after that fall 
rapidly, but furnish ample water for all irrigating purposes. 

TIMBER. 

1. The section of country situate south of the Union Pacific Railroad on the head of 
Bear River and its tributaries contains about 50,000 acres of timber, principally white 
spruce and quaking aspen of stunted growth, rarely exceeding 14 inches in diameter 
at the base of tree. Very little if any could be used or considered clear logs. 



PUBLIC LANDS. 565 

2. No trees have been planted except cottonwoods, and of those but few; other trees 
such as black locust and box elders might grow if properly cultivated, but on account 
of altitude their growth would be slow. 

3. By giving free to all settlers all timber that they may require for use for fuel, build- 
ing, fencing, mining, smelting, and manufacturing purposes, when not exported out- 
side the Territories — provided no growing timber is cut or used measuring less than 
six inches in diameter for other than agricultural purposes, like fencing, &c. It would 
undoubtedly be advantageous for the second growth of all timber to have dead and 
fallen timber removed as speedily as possible and thus avoid to a great extent the fu- 
ture destruction by fire of the young timber. Many thousand acres of young pines and 
quaking aspen have been destroyed by fire this past season in this section that could 
have been saved had it not been for the masses of dead fcimber interspersed through it; 
there is more than enough of such timber in Wyoming and Utah that could be used 
for fuel, charcoal, or fencing in the next ten years, or prior to its becoming worthless 
by decay. The use of such timber most certainly should be accorded free. I have no 
hesitancy in saying that the want of good growing timber is too keenly felt by the 
settlers of these Territories to permit of their firing it in order to avoid the payment 
of stumpageor other tax. 

If it is deemed to the interest of the government that timber should be paid for by 
the poor and half-starved pioneers and settlers of the Territories when used for the 
purpose of building up these Territories and making them habitable — in that case 
charge a low stumpage tax, say not to exceed 50 cents per foot, on saw-logs eight 
inches in diameter and over, and 10 cents per cord for wood, but permit no green or 
growing timber to be cut under 6 inches in diameter unless for fencing purposes. The 
sale or lease of timber lands in the Territories would tend to a monopoly in some sec- 
tions of the Territories if not in all. 

4. Would not classify the different kinds of forest lands in manner of disposition, 
&c. The quality of the timber and its accessibility changes in every county and 
canon, and could not be fairly classified. 

5. There is usually one-third spruce and two-thirds quaking aspen as second growth 
where timber has been burned off, and think there would be the same result where 
timber has been felled ; should think it would require twenty- five to thirty years for 
a spruce to acquire the diameter of ten inches. 

6. Forest fires are started generally from two causes : 1st. Indian hunting parties, 
who start fires for the purpose of driving game and a natural love all Indians have for 
setting fire to grass or timber when passing over or through it. 2d. Through culpable 
negligence on the part of white hunters and fishing parties leaving their camp-fires un- 
extinguished. Extent of fires : I should estimate that two-thirds of the timber in this 
belt has either been destroyed or killed by fires during the past summer, they having 
been unusually destructive, caused by extreme drouth. Prevention : keep Indians 
on their reservations. Make and enforce very severe laws against the whites, say two 
or three years in penitentiary and $500 fine for starting such fires, accident or careless- 
ness not to be considered an excuse. Two or three prosecutions under such a law 
would effect a cure or tend to make transient campers more careful. 

7. To my knowledge there has been no willful destruction or waste of timber in 
either of the Territories of Colorado, Wyoming, Utah, Idaho, or Montana. In cutting 
saw-logs and railroad ties tree tops are left, proving destructive to the growing timber 
if left on the ground. In case a fire should, break out I would make it obligatory on 
persons cutting logs or ties to clean up debris by cording up that portion suitable for 
fuel and destroying the brush. 

8. Logs, ties, and wood are usually cut and delivered by parties who make that their 
business, and sold to railroad companies, saw-mills, mine owners, smelting works, char- 
coal manufacturers, agriculturists, in fact to nearly all consumers. Timber : pine and 
aspen, is not often to be had near place of consumption, nor does it grow nearer than 
from thirty to fifty miles from arable lands, in most cases over that distance. The 
ownership of timber, wood, ties, &c, is exclusively in the parties who fell it, until de- 
livered to the party contracting for same. 

9. I think that the control or management of the public timber lands, under the law, 
should be placed in the hands of the district land officers, with power to employ an 
efficient and capable man or men acquainted with the timber business and the country, 
to act as supervisors of the timber sections on behalf of the government, and see that 
the laws in regard to the cutting and preservation of young timber are complied 
with, and in case a stumpage or other tax law is to be enforced on timber cut, it shall 
be the duty of such appointee of the local land officers to examine into the correctness 
of the returns made by parties cutting timber ; and it shall also be a part of his duty 
to act as a patrol or detective in case of fires being started in his timber district, with, 
a view to punish the offenders. 



566 PUBLIC LANDS. 

Testimony of George B. Thomas, register of the land office, eastern district of Wyoming. 

United States Land Office, 

Cheyenne, Wyo., November 14, 1879. 

Dear Sir: In accordance with your desire I give my views and facts in relation to 
Wyoming, more especially in the workings of the land system and the industries rel- 
ative to it. I would refer, in the first place, to the circular sent to me by the Public 
Land Commission, the questions in which I will in part answer to the best of my 
information. As register of the land office for the eastern district of Wyoming, my 
jurisdiction extends over one-half of the Territory, or from the eastern boundary of 
the Territory west to the 108th meridian. 

In a residence in the Territory for the past ten years, part of the time in the ca- 
pacity of a United States deputy surveyor, I have had occasion to visit a greater 
part of our Territory, and in discharging the duties of my office have become familiar 
with the views held by the settlers on the public lands, and what would seem to me 
as injudiciousness in some of the laws relating thereto. In Wyoming, where the 
greater part of the land is of such a character as to be classed as desert land, it strikes 
me the requirements to obtain title should not be as stringent as in more populous 
and fertile States, for the land at best in these thinly settled regions cannot be worth 
more than the government asks; yet the settler, to procure a title, even at the j>rice, 
is put to a large amount of trouble and expense, especially in making his final proof. 
He must bring two witnesses, sometimes several hundred miles, to certify as to his 
improvements. He must advertise his intention to make final proof and name a day 
after the expiration of thirty days that he will be at the land office with two specified 
witnesses. It often occurs that the witnesses specified cannot be obtained at the time 
named, or are unable to go perhaps a hundred miles or more to some officer before 
whom their depositions can be taken, thereby laying the applicant liable to delay and 
fresh expense in procuring other witnesses and advertising. 

The desert act of March 3, 1877, meets a great want, inasmuch as the settler can 
perfect a title on unsurveyed land, for a greater part of our Territory is as yet unsur- 
veyed, and with the small appropriation doled out but little progress takes place 
each year. This law gives an impetus to settlement, whereas under previous laws 
the settler was loath to make permanent or costly improvements on land to which 
the title was indefinitely postponed. Yet there is in this, like the other laws, one 
common and just complaint against the stringency required on final proof. One 
of the principal features in the physical structure of our Territory is the small 
amount of first or bottom land proper. Our streams coursing along the prairie cut 
deep, and the generally very narrow and irregular strips of bottom land are hemmed 
by higher bench lands or chains of rolling bluffs, so that a claim of 640 acres must 
necessarily be made up in a great part by these higher lands, to which irrigation 
could not be brought, which would fail in a compliance to the letter of the law. 
All of these lands, outside of a small portion bordering on streams, are of no 
utility but for grazing purposes. The grasses, of unsurpassed nutritiousness, depend 
for growth mainly on our late snows and spring showers. Oftentimes our dry 
seasoas give but a scanty growth ere the curing process commences, stunting growth 
and yielding a scant supply of feed. And for this class of land, with its one redeem- 
ing trait, stock-feed, it seems to me government receives a very full compensation, the 
dollar and twenty-five cents per acre, without making requisite the full irrigation of 
the tract— in fact, an impracticable demand in many cases. Say, require the irriga- 
tion of one-quarter, or 160 acres, and I think the law would be of more equal satisfac- 
tion, and the government obtain the full value for much more land. In regard to the 
final proof required upon this class of entries I have often heard men say, " If I have 
to answer all of those questions I will let the land alone, for it is not worth over one 
dollar and twenty-five cents per acre after I improve it." Parties have said to me 
that they had rather buy of the settler that had obtained a patent for land than to 
fulfill all the requirements of the laws ; yet these very men were probably contemplat- 
ing the erection of several thousand dollars' worth of improvements. But their resi- 
dence was in some town, distant from the land, and they did not want to fulfill the 
requirements of the homestead or pre-emption law by living on this land, merely to be 
granted the privilege of paying to the government the full value of the land. 

The pastoral homestead law, yet one of the things to be, I should judge 90 per cent. 
of the stockmen would fervently wish it to remain in that innocent condition for some 
future generation to give it the breath of life. If by the wish of the stockmen it is to 
be it will never become a law. Only a few hours since one of the most prominent of 
our sheep men said, " If the law passes my sheep business is over, and it will be my 
first endeavor to sell out." I understand from conversing with them that the most 
prominent of our cattle men are also strongly opposed to the law. A meeting has 
been called by the secretary of the stock association for Tuesday evening, November 
18, to discuss this question, and the opinions as gathered I will add to this before it is 
mailed. 



PUBLIC LANDS. 567" 

I believe the present system of public-land surveys is as perfect as it can be 
made, with the exception of a few more requirements by the surveyors-general as re- 
gards the marking of lines and a more careful and frequent inspection to see that their 
instructions are complied with and the work carefully done. I am fully convinced 
that the surveyors-general should have a practical knowledge of surveying, for at pres- 
ent many of the offices are filled by men who have not the most shadowy idea even 
how to conduct a government survey, and in the smallest particulars have to depend 
entirely on the greater competency of subordinates. In the case of most of the sur- 
veyors-general a personal inspection of the work of their deputies would not enlighten 
them to any great extent, particularly as to whether the lines were properly run or not. 
The deputy, therefore, has nothing to inspire him to good work but his own conscience. 

Registers and receivers should receive a salary of not less than $1,500 to each, and 
should by all means be allowed office rent, fuel, and incidental expenses ; abolish fees, 
may be, except in contested cases, when the officers should be allowed as much as now, 
or more, for reducing testimony to writing. In most cases the amount allowed is hardly 
sufficient to pay a stenographer or clerk, whose services on such occasions are most 
urgently required. 

Patents for public lands should issue in the regular order in which final payments 
are made, and should be returned to patentee, after final papers are perfected, with 
more promptness. 

More prompt attention should be given by the department to communications re- 
ceived from the registers and receivers. 

Expired filings of all kinds should be canceled at the expiration of one year after 
limitation of same, and not, as now, compel the second filer to obtain the relinquish- 
ment of a filing that has been dead by limitation perhaps two or three years. 

In regard to the felling and removing of timber upon the public lands, I think the 
stumpage law as it is should be modified so that the rate for railroad ties should be 
doubled and the restrictions upon the chopping of cord-wood removed. Make a pen- 
alty for using green timber for such purposes. By such a law the timber land would 
be cleared of all fallen timber, with which our hillsides are covered, and thereby in a 
great measure prevent the spread of fire, which is so destructive not only to large 
timber but to the young trees that are everywhere springing up along the mountain- 
sides. The choppers, as a rule, use only dead and fallen timber for cord-wood, as it is 
much lighter to haul and more preferable to the consumer. 
Very respectfully, 

GEORGE R. THOMAS. 

Thomas Donaldson, Esq., 

Commissioner on Public Lands, Philadelphia, Pa. 



APPENDIX A. 



ADDITIONAL TESTIMONY EECEIVED BY THE PUBLIC LAND COMMISSION 
SINCE DECEMBEE 15, 1879, AT WHICH DATE THE PEINCIPAL MASS OF 
TESTIMONY WAS SENT TO PEESS. 

Testimony of E. C. Hopkins, Tucson, Ariz., on the Spanish laws o/l?61 and 1789, relative 
to irrigation in the western provinces of Mexico. 

Tucson, January 4, 1880. 

Dear Sir: Your note of inquiry just received. The general regulations for the 
measurement of water, published in 1761, declare: 

That the regalia, according to the common and rigorous acceptation of the term, is 
the right of eminent domain, which pertains to the monarch, in properties vagrant, 
shipwrecked, intestate, waters, lands, and mines; and that, therefore, the prince 
alone has the right to distribute the waters. 

In 1789 instructions were issued by the comandante general of the western province 
of Mexico for the establishment of the new pueblo of Petic (Hermosillo) in the province 
of Sonora ; which instructions were to be observed in the establishment of all pueblos 
within the jurisdiction of the comandancia general, which jurisdiction embraced all 
the western provinces of the vice-royalty of Mexico, including California. These in- 
structions were approved by the King and direct as follows : 

Art. 6. The tract of four square leagues granted to the new settlement (pueblo) 
being measured, its pastures, woods, water privileges, huntings, fisheries, stone quar- 
ries, (fruit) trees, &c, shall be for the benefit of the Spaniards and Indians residing 
within the territory measured off. 

Art. 19. Irrigation being the principal means of fertilizing the lands, and that 
which most conduces to the increase of the settlement, the commissioner (appointed for 
that purpose) shall take particular care to distribute the waters so that all the lands 
susceptible to irrigation may partake of the benefits thereof, especially during the 
spring and summer seasons when irrigation is most required, in order to insure good 
crops, for which purpose, availing himself of the services of skillful and intelligent per- 
sons, he shall divide the territory (to be irrigated) into districts, marking out to each 
one a trench or ditch, starting from the main source, which may carry sufficient water 
for the irrigation of the tract for which it is intended, in order that each settler may 
know the ditch by means of which his tract of land is to be irrigated, so that he can- 
not and shall not have the power to take the water belonging to another, nor a greater 
quantity than may belong to his tract of land. 

Art. 20. In order that the settlers may enjoy equitably the benefit of the waters, in 
proportion to the need of their crops, there shall be named annually, by the ayunta- 
miento (town council), one alcalde, or "niandador," for each water ditch, in whose 
charge shall be the distribution of the water to the different tracts to be irrigated, in 
proportion to the necessities of the lands ; the alcalde to publish a list of the owners 
of the lands to be irrigated, and the hours of the day or night at which the respective 
tracts were to be irrigated ; to the end that, from the carelessness or indolence of the 
owners, lands might not be without irrigation at the proper time, which, besides 
working private damage, would result in an injury to the community. To avoid this 
the alcalde of each water ditch shall keep a peon "or servant, who, knowing the hour 
of the day or night designated for the irrigation of each tract or corn-field, shall, when 
the owner fails to do so, take care to irrigate the tract at the proper time ; for which 
labor he shall be paid by the owner of the tract irrigated the just value of his labor, 
the sum to be regulated by the commissioner or by a judicial officer. 

"Art. 21. The repairs and cleansing of the main ditch to be at the expense of the 
community, and this work to be done at such times as the commissioner and town 
council may designate, each settler giving his personal labor toward the same, or pay- 
ing a reasonable assessment. 

The foregoing instructions and regulations are based upon laws from time to time 
passed for the government of the Spanish Indies. 

In arid countries, such as a large portion of Spanish America, water for purposes of 
irrigation is an element of the greatest importance; hence, the laws of Spain in rela- 
tion to the use and distribution thereof were exceedingly exact and stringent. The 

569 



570 PUBLIC LANDS. 

use of the water belonged to the riparian lands, which eonld not be deprived thereof. 
It was an element pertaining to the land of which it conld not be divested, the use 
and distribution thereof being under the control of officers appointed under the law, 
whose duties were to see that each tract of irrigable land received all the water to 
which it was entitled ; and even when the owner of the land neglected to supply the 
same with water, the land received it through the ministration of guardians appointed 
for that purpose. 

Very respectfully, your friend, &c, 

E. C. HOPKINS. 
J. W. Powell, Esq., Washington. 



Testimony of C. BielawsM, draughtsman, surveyor-generaVs office of California, San Fran- 
cisco, Cal., relative to present system of surveys, contract system, inspector of surveys, cost 
of surveys, townships surveyed, permanent monuments, Spanish grants, Mexican grants , 
triangulation survey, and topography. 

C. Bielaski, draughtsman United States surveyor-general's office of California, 
testified at San Francisco, October 16, 1879, as follows : 

I was a military engineer until 1871, when I came to this country. 

Question. Give us your ideas of what should be done to make more perfect the present 
system of survey, and what methods you would devise to make more accurate topog- 
raphy and definiteness of description. — Answer. From my experience I am led to be- 
lieve that by following and properly executing the instructions of the present system, 
it would give a sufficiently accurate result in every respect, both as to surveying and 
topography. I believe that in running around a square mile of country a surveyor 
would have plenty of chances to get a distinct topography of that one square mile. 

Q. What do you think as to abolishing the contract system and substituting a wage 
system ? — A. I think that would give better results, but it would be at least three or 
four times more expensive than at present. I would suggest the keeping of the present 
system under better control. I would control it by an inspector or inspectors of sur- 
veys, who would inspect the work before it is paid for. I believe it is so in the Eng- 
lish system. He should not be amenable to the surveyor-general, but should be an 
independent officer. 

Q. Do you think the present prices adequate ? — A. I do not think the present price 
adequate in some parts of the country. In the mountain ranges it is not. The sur- 
veyor-general can order a higher price if he thinks it is best. 

Q. Do the exterior lines cost more than the other lines ? — A. The government al- 
lows, two prices, and the higher prices are not adequate in some tracts. In large 
tracts, all together, the surveyor might do well ; but if a man has to go to the expense 
of preparing to survey a single township, it is very seldom that he will make any 
money out of it. 

Q. How many townships have been surveyed in California ? — A. I should say 3,000. 

Q. Out of those 3*, 000 townships, do you know how many of them are settled ? — A. 
Well, I should say that two-thirds are partly settled, and the other third perhaps not. 

Q. Are these 3,000 townships subdivided? — A. A good many of them; a good many 
of them on the borders of streams have been subdivided, wherever valuable land has 
been found. 

Q. Don't you think the surveyor should be permitted to give all possible informa- 
tion to settlers ? — A. I should think so. 

Q. What can you suggest in regard to more permanent monuments or stakes, or 
distinctions of any character to make surveys more permanent ; and is not there a ne- 
cessity for more permanent monuments ? — A. We have here surveys made twenty-live 
or thirty years ago, and when surveyors now go there, they can trace all the lines very 
well. That is, on the plains and mountain lands, we have surveys north and south, 
and if properly executed, they will last thirty or forty years. Some corners have been 
mischievously" destroyed, but if properly executed, I believe the surveys would last a 
long time. 

Q. Have you had charge of making the maps of the Spanish grants ? — A. I am not 
chief draughtsman. I used to have charge, but I have not now. 

Q. Do you know of any of these grants having grown in a night over the original 
grant of the alcalde? Have they enlarged and any exterior lines been taken in? — A. 
I cannot answer of my own knowledge. I have heard of some such things. 

Q. Do you think that this question of Mexican grants should bo settled ? — A. Yes, 
they should be, but I don't think there are many left unsurveyed. In fact, I think 
very few remain unsurveyed. The government ought to confirm the titles at once 
and get rid of the whole subject. 

Q. Have you any further suggestions to make ? For instance, would you not put a 



PUBLIC LANDS. 571 

clause in the law to authorize triangulation if it was, in the judgment of the surveyor 
"best to use it ? — A. They are allowed triangulation now. If the United States would 
make an accurate triangulation survey and let the United States land surveys be con- 
nected with it, I think it would be well, so that we could make a good map of the 
United States. The deputy surveyors are allowed fifty chains per mile, by way of 
mistakes. By having connections with real good triangulation points those errors 
could be discarded and a very good and useful map be made of the country ; but as to 
the present system, I consider that if they are surveyed by solar compass in a good, 
faithful way, I think our surveys can be made very nicely. I believe it is not the 
duty of the United States to furnish an exact topographical map, but to plainly sub- 
divide the lands by lines, so that every farmer and settler can go there and hunt up 
the land he wants and occupy it. As to further improvement in the topography, it is 
the duty of the State to do that. We have here in thi3 State very nice county maps. 
These maps will be made in time everywhere when the country is settled. Just as it 
is the duty of the State (to whose interest it is to know all its resources) to make 
geological and valuation surveys, so it is the duty of the general government to parcel 
the land for sale with topography enough for identification. 



Testimony of Charles W. Cross, attorney, Nevada City, Cal., on lode claims and placer 

claims. 

The questions to which the following answers are given will be found by unfolding 
page opposite page 1 : 

1. Charles W. Cross, attorney, Nevada City. 

2. Seven years. 

3. No. 

4. A considerable practice in obtaining United States land patents. 

5. Mineral patents from one to three years. 

6. From one hundred to four hundred dollars, besides price of land. 

7. Mountainous. Mostly mineral and timber lands. 
9. The present system is good enough. 

10. The desert-land law should be repealed. 

LODE CLAIMS. 

1. Several years of active practice in mining litigation and patents. 

2. It is a very common complaint that applications for mineral patents move too 
slowly in the department at Washington. f 

3. The present practice is probably best calculated to protect all parties in interest, 
and has caused no trouble in this vicinity. 

4. The apex of a vein is the vein at the surface. When a lode has been developed 
sufficiently to show it's worth, locating those facts can be sufficiently determined for 
ordinary purposes of location and record. 

5. The present law as to locations works well ; it would work better if more partic- 
ularly observed. 

. 6. No. It prevents both litigation and injustice, as it makes floating of claims quite 
impossible. 

7. Yes ; but under the present law the rights of the respective parties are easily de- 
termined. 

8. No ; not under the act of Congress. 

9. Not in this vicinity, but 600 feet in width often includes several distinct and val- 
uable ledges. 

10. Seldom. 

11. Don't know. 

12. Have never known of such a case. 

13. Not in this vicinity, under the act of Congress. When such litigation arises, it 
is usually from claims dating prior to the act of 1866. 

14. That is the most important provision of all; the reasons are obvious to those who 
are well acquainted with lode mining. 

15. No. 

16. Stake off or mark boundaries, post and record a notice clearly defining the loca- 
tion and boundaries. 

17. No. 

18. Not where the records are kept with other land-title records. Local mining rec- 
ords are liable to much abuse. 

19. All local mining-district laws should be abolished, but the records should be in 



572 PUBLIC LANDS. 

the county recorder's offices. It would be inconvenient to have the records at United 
States land office, on account of the difficulty encountered by persons at a distance in 
examining them. 

20. No. These rights are very difficult and complex, and need juries and the best- 
judges for their determination. 

21. The right to raise ventilating shafts under proper restrictions from the dip of 
the ledge through adjoining ground would be a valuable amendment. 

22. Have not considered this subject fully. 

PLACER CLAIMS. 

1. A large proportion being deposits in what are called ancient river-beds or chan- 
nels in quartz gravel. 

2. Yes ; by several years of active legal practice in that kind of business, from $100 
to $5,000 with contest, the difference in contested cases being chiefly attorney's fees in 
local courts. 

3. From $50 to $300, besides price of land, without contest. 

4. The general law not requiring, well-defined acts to evidence of possession, &c. 

5. Defective in maintaining boundaries and making improvements. 

6. There should be some reasonable limit to the quantity which can be acquired or 
held by any means by one person, corporation, or copartnership. 

7. No ; all placer mining claims should become public lands if no valuable improve- 
ments are made during any period of five years. 

8. No ; not since 1872. 

9. No. But parties owning outlets on mineral lands frequently are very unjust in 
their exactions. The Congress should pass laws concerning easements and drainage 
and water rights for mining purposes, and all patents for mineral lands thereafter 
issued should be subject to such conditions. 



Testimony of C. D. Davis, land surveyor and civil engineer, Fresno County, California, and 
H. 8. Patterson, Fresno County, California, on agriculture and timber lands, mining and 
pasturage lands. 

The questions to which the following answers are given will be found by unfolding 
page opposite page 1 : 

1. C. D. Davis, Fresno County, California, land surveyor and civil engineer. 

2. Twelve years in the county, thirty in the State. 

3. Yes, under the homestead law. 

4. Have witnessed the settling up of a new country and have been called on often 
to survey and get numbers for settlers, &c. 

5. Time, three to four days ; expense, $30 to $50, in uncontested cases ; in contested 
cases, costs up to bankruptcy. We are thirty miles from a land office. 

6. The laws are good, and without perjury the government cannot be wronged. 
(There are already laws for perjury.) 

7. Rough mountains, low or foot hills, and level valleys, comprising all the different 
kinds of land in the question. 

8. There can be no general rule nor geographical division. It can be best fixed by 
the reports of surveys. It fixes itself in part by the density of the population, where 
it remains sparsely settled after a reasonable time has elapsed to settle it. 

9. No need of changing the present system except so far as to allow settlers to locate 
by sections on pasture lands, always reserving the right to the mineral to the miners. 
Timber land should be sold with a limit on the amount that any one man or firm could 
hold. Valley lands are already owned. My reasons for selling the timber is to pro- 
tect it. Government cannot do it as well as the individual. Pasture lands should be 
in quantities sufficient to support a family by passing title to the settler. He could 
not be eat out, but could stock his range so that there would be no danger of losing 
his stock from want. 

10. There can be no better system except as to pasture lands, and there the system 
simply wants enlarging. 

AGRICULTURAL. 

A little too hot for comfort through the summer in the valley, but by climbing the 
mountains can get anything you want. Rainfall rather light ; average not more than 
10 inches. Length of season nine months; many places not frost' enough in the 
other three to kill orange-trees. Snowfall — none in the valley, and very little below 
2,000 feet altitude, and not heavy until about 4,000 feet. Water supply without limit; 



PUBLIC LANDS. 573 

all we want through May and June (when we need it most). Sometimes an overplus 
six or seven months in the year. 

2. Rainfall : The greater part in December and January. March often gives us a 
good rainfall. The supply from the melting of the snow is what we rely on for irri- 
gation. 

3. Successfully, but a small proportion. 

4. About one-fifth. 

5. Almost everything ; but the country is settling principally on wheat, alfalfa, and 
fruits, (mainly grapes). Egyptian corn, though, is growing in favor very fast, and 
promises to be a leading crop in a few years. Raisin culture has proved a great suc- 
cess. 

6. About 12 inches. This amount put on the land at any time will secure a crop. 

7. The snows of the Sierras are our main dependence ; they acting something like a 
reservoir, and melt almost exactly as our wants call for, and come down to us through 
the Joaquin and Kings Rivers. 

8. I have had fifteen years' experience in irrigation, and must say that, with judi- 
cious handling, the fertility of the soil is greatly enhanced by irrigation. I have 
known good potatoes (Irish), cabbage, beets, parsnips, turnips, and barlej raised at 
an altitude of five thousand feet, but think this the limit of cultivation. 

9. All used ; none returned ; no restrictions except the State law, that requires canal 
owners to put the water to some practical use in order to hold their riparian rights. 

10. Through the flood season (May and June) not more than one-fifth, by incorpo- 
rating and locating under the State Jaws. 

11. A little in regard to riparian or prior rights, but the main contests have been for 
rights of way and disputes inside of companies. 

12. Three million five hundred thousand acres. 

13. Yes, on all the foot-hill pasture lands, not less than five sections. 

14. I would put them on the market for homestead purposes only, and forbid the 
cutting of oak timber until the expiration of the five years. 

15. To rely entirely on the pasture it would take 40 acres to the animal. I do not 
think our lands furnish as much feed as lands farther north or nearer the coast either. 

16. Fifty to one hundred. 

17. About 12 bead ; but a small proportion, however, are on our pasture proper, four- 
fifths being in the valley. 

18. The quantity remains about the same, but some kinds are dying out. 

19. But little fencing on what we are denominating pasture lands. Do not believe 
it would pay to fence them. 

20. Could not say. 

21. Streams and springs mainly. 

22. Five. 

23. Except where overstocked it remains about the same. Changing a little in 
kinds ; for instance, bunch-grass is in many places entirely destroyed. 

24. Not well; if left to themselves will separate themselves. 

25. I know of but little of late years between cattle and sheep. But sheep men are 
falling out constantly about the division of the public range. 

26. Cattle about 30.000; seldom herded sheep ; 300,000 herded in bands of about 2,000. 

27. None other. 

28. None where charcoal was deposited ; where charred posts were used I sometimes 
have a little trouble. 

TIMBER. 

1. Timber of some quality grows over a large area, but timber lands easily accessi- 
ble are scarce, the whole county not having over 150 sections, i. e., timber fit for mill- 
ing. The milling timber is fir, sugar and yellow pine. 

2. Australia gum trees, lombardy poplar, locust, and walnut. The planting is just 
commenced ; too soon to give results. 

3. Sell them not more than one section to any one firm or man. This would prevent 
monopoly, for I would not allow them to acquire more than that from any source ; and 
I would sell them so cheap that it would be cheaper to buy than steal. I stated before 
that I thought private ownership was the best protection the timber could have. 

4. The only classification I would make would be to set off the milling timber. The 
rest would all go as pasture lands. 

5. Yes: it springs up immediately, grows rapidly, but would take about two hun- 
dred years to mature if you let it alone. The principle of the fittest surviving is seen 
in this. The young timber comes up very thick ; no possible chance for one in a hun- 
dred to make a tree for want of room. Of course, in the struggle the strong must be 
greatly retarded in their growth. The oldest pines here are less than 400 years old. 

6. Fires generally start from the Indians, but are seldom very destructive here, at 
least not in comparison to fires in Oregon. The best prevention is for private owners 
to guard them. 



574 PUBLIC LANDS. 

7. Nothing more than that they are heavy. Shake men often throwing trees 4 to 7 
feet diameter, and if it splits a little tough, leave it to rot while they hunt a better 
splitting tree. Saw-mill men, too, cut nothing hut the clean trunks (comparatively). 
Competition being sharp, they are compelled to make an extra quality of timber, and 
as the timber costs them nothing (stealing it from government), they slash away. 
The main use here is for building and agriculture. (Private owners are the best 
guards.) 

8. Everybody cuts that wants. The man that throws the tree owns it, and gener- 
ally sells it to the consumer. 

9. Of course it would be an improvement on the present plan, but not so good as 
interested guards. 

MINING. 

Question 1. Everybody that has been here thirty years has had more or less to do 
with mines ; but taking the whole thing together, I think the best way would be to 
let the prospector get a survey and own all of his 20 acres vertical, compel him to 
pay for it, and give him a deed. This, I believe, would end all trouble, as it would 
prevent overlapping and give him all his location. I would let him locate to suit 
himself, i. e., would let him locate so that the east lode would be on one edge of his 
survey, if he so willed. 

Respectfully, yours, 

CD. DAVIS. 

Addenda. — One word in regard to pasture lands above an altitude of 5,000 feet. 
These should have both the mineral and timber reserved ; the timber, though, will 
never be needed except for mining, the way it is situated. 

1. H. S. Patterson, Borden, Fresno County, California. 

2. Six years, and State ten. 

I corroborate with the above, except in answer to question 14, under the head of 
agriculture. The foot-hill lands should be sold in tracts not to exceed 320 acres to 
one man or farmer, and he should be a bona fide owner of land in the valley. 

All of which is respectfully submitted. 

H. S. PATTERSON. 



Testimony of Peter Decker, of Marysville, Cal., relative to the amounts expended in conse- 
quence of the Mling in of rivers by tailings from mines. 

Marysville, Cal., January 5, 1880. 

Dear Sir : Absence from home and a press of business have delayed my promised 
report as to amounts expended here in consequence of the filling in of our rivers by 
tailings from the adjacent mines. The necessity for levees arising from this cause was 
made apparent before 1868, up to which time there was expended on levees about 
$30,000. In that year a system of levees for this city was adopted, and the cost of con- 
struction was $30,500. In 1875 the levees broke and our city was inundated to the 
depth of 3 to 5 feet, destroying property to the value of $500,000. During that year 
the city expended on levees for its future protection $105,000. In the year just past 
(1879) the city extended its system of levees at a cost of $50,000. Our system of 
sewerage has become nearly useless on account of the raising of the river bed, leaving 
no outlet. It cost $15,000. 

The filling in of river beds and consequent overflow of the surrounding country has 
necessitated the construction of elevated roadways and expensive bridges, which have 
been constructed at a cost of $120,000, and which, like levees, require heavy outlays 
annually for their preservation. 

The county (Yuba) has spent in addition to the foregoing on levees and bridges. 
$96,500, in consequence of the filling up of the streams, and, alter ail, our protection 
is inadequate, and will be totally so within a few years unless hydraulic miners are 
prevented from running their tailings into the streams. The adjoining county of 
Sutter has doubtless spent as much or more than Yuba for similar uncertain defenses, 
and other counties and districts not less. Thus large districts in the Sacramento Valley, 
including cities and towns, have been injured in property until they feel there is little 
protection, and a certain demoralization will ensue where the authorities are incapable 
or neglect to protect property. The disastrous effect on this city (eligibly located) is 
shown in the fact that in 1860 our assessment roll was $4,540,000. In 1879 it was 
$1,896,000, and that, too, on a high rate of asssessment. 

I am, very respectfully, 

PETER DECKER. 

Maj. J. W. Powell, 

Public Land Commission, Washington. 



PUBLIC LANDS. 575 

Testimony of Rudolph Klotz, farmer, stock-raiser, Src., Shasta County, California, on agri- 
cultural and timber lands. 

Shasta County, California, 

December 12, 1879. 
To the honorable board of Land Commissioners, 

Washington City, D. C. : 

My name is Rudolph Klotz ; residence, Klotz's Mill, Shasta County ; 03cupation, 
sawmill, sash, door, and blind factory, farming, butchering, and stock-raising. I have 
lived in Shasta County, of this State, twenty-nine years. I have bought offered land 
direct from the general government. I am well acquainted with the United States 
and State land laws. The public land now remaining in this State is timbered land, 
grazing land, mining land, and a very small portion of agricultural land, in this county 
or State. The general grazing land is very poor ; the land in the foot-hills and val- 
leys, after the month of May, dries up so it is not fit for grazing during the summer. 
Nearly all the stock men have to move with their stock to the mountains during the 
summer and return again in the fall season. For that reason I think the public graz- 
ing lands of this State would not be beneficial for homesteads, for tbe reason it being 
so poor it would require a very large quantity for a man to make a living on it alone. 
From the above-stated facts, in my opinion, it would be best for the general govern- 
ment to sell such land to the highest bidder in unlimited quantities. In regard to 
sheep-grazing, sheep and cattle will not graze on the same land. Sheep will drive the 
cattle off. Sheep grazing continuously on the same land will destroy the grass en- 
tirely. From the fact not having any rain on an average for six months in the year, 
all our grass comes from the seed ; and sheep being a close feeder, but very little of 
the grass goes to seed, and what does go to seed the sheep eat the seed. 

In regard to timber land, the timber land of any value is located on the Sierra 
Nevada Mountains, running the entire length of the State, and on an average of ten 
miles wide. The character is sugar pine, yellow pine, fir, and cedar. The timber in 
the foot-hills and valleys is principally oak, and only fit for firewood. The majority 
of the best timber for the manufacture of lumber has been cut, having been cut by 
all the mill men and board and shingle makers, there not being any law whereby the 
mill men and shingle-makers could procure a title to the timber, consequently they 
cut the timber without paying the government for it. If not got in that way, we 
would have had to live in tents or import lumber from some other country, the law 
that was passed at the last regular session of the United States Congress, only allow- 
ing a man to purchase 160 acres of timber land at the rate of $2.50 per acre; in my 
opinion the quantity of land is not sufficient for mill men. It will not pay any man 
to erect a mill for the manufacture of lumber for that amount of land. In my opinion 
it would be to the interest of the government to sell the timber land of California to 
the highest bidder, and in unlimited quantities ; and at the time Congress pass a law (and 
be particular to strictly enforce it) to charge so much per thousand feet on and after a 
certain date for all timber that is cut on public lands. In that way it would make no 
difference to the manufacturer, for he could charge the same amount extra on the 
manufactured work that he had to pay for raw material ; in that way he would not 
encroach on the government. The sale of timber at $1 per thousand would pay the 
expenses of collection and leave a balance of more to the government than any other 
way. The timbered land could be disposed of if it was not for fire. I would recommend 
the sale of the timber altogether, and not the land, for in an early time, before the 
country was settled by the whites, the Indians burned the timbered country every 
year, but since that time accumulation of rubbish from the growth of vegetation is so 
great that when a fire runs over the country and through the timber it destroys most 
all the timber. I have been in the mill business in manufacturing lumber for twenty- 
eight years, and consider myself as well, if not better, posted than any other man in 
the. State on the timber questions. Everything that I have stated in the above I have 
done from my own personal knowledge and experience. I am very sorry that I did 
not see the government commissioners when they visited this county, as I could have 
given them more information orally than 1 can by letter. As to mining land, I have 
but very little knowledge. 

If you wish any reference to me, I refer you to Hon. Newton Booth, United States 
Senator from California. 
Yours, truly, 

RUDOLPH KLOTZ. 



576 PUBLIC LANDS. 

Testimony of P. C. Scott, land and abstract agent, Bed Bluff, Cal., on agriculture and 

timber. 

The questions to which the following answers are given will be found by unfolding 
page opposite page 1 : 

1. P. C. Scott, Red Bluff, Cal., land and abstract agent. 

2. Twenty-two years. 

3. Have acquired titles to public lands under most of the acts of Congress permit- 
ting such acquisition. 

5. Depends on distance from local office and character of location. Actual home- 
stead entries requiring the presence of settler at land office to make filings, necessitate 
a cost to such settler of say $30 more than pre-emption filings. A contested case is 
generally at an expense of about $75 more than non-contested. 

6. The operation of United States land laws gives general satisfaction to actual 
settlers. 

7. County of Tehama ; total area about 2,048,000 acres ; about one-fifth is sus- 
ceptible of cultivation; about four-fifths are grazing and timber lands. No mineral 
lands in Tehama County ; and timber lands are of but little value. 

AGRICULTURE. 

1 to 11. Irrigation is unknown except for minor gardening purposes ; the farming 
portion being tropical, would not be inhabitable by the Caucasian race if generally 
irrigated. 

12. Fully four-fifths. 

13. Yes ; not less than 320 acres, and would induce considerable settlement. 

14. Would be advisable in perhaps two years hence, by which time every acre in 
any way susceptible of cultivation will have been occupied by settlers. 

15. Estimate at three acres. 

16. From one hundred upwards. 

18. Diminished. 

19. No. 

23. Very much diminished. 

24. No. 
28. No. 

TIMBER. 

1. A limited supply of pine and fir in some mountains. 

2. None planted. 

3. Am very positive in asserting that timber lands should be sold in tracts of not 
less than 320 acres, at a price varying according to the estimated stumpage thereon. 

8. Local customs are, to indiscriminately take possession of, manufacture lumber 
and destroy forests. 

9. Yes. 

LODE CLAIMS. 

None in Tehama County. 

Tehama Land and Abstract Company. 
P. C. SCOTT, 'Agent. 



Testimony of E. D. Bright, Trinidad, Colo., on agriculture-and timber, lode claims, and 

placer claims. 

The questions to which the following answers are given will be found by unfolding 
page opposite page 1 : 

1. E. D. Bright, Trinidad, Colo. 

2. Ten years. 

3. Have pre-empted one claim. 

4. None. 

5. About one year until patent issues. 

6. No. 

7. All kinds, including coal. 

8. By geographical division in this country. 

9. Am unable to give good suggestions. 

10. Know no better. 



PUBLIC LANDS. 577 

AGRICULTURE. 

1. We are getting more rain and snow each recurring year. 

2. Snow, winter and spring ; rain, Jnne and July. 

3. None. 

4. Any land that can be covered by ditch. 

5. Corn, wheat, oats, barley, and all vegetables. 

6. About one foot. 

7. All streams supply good in county. 

8. Know of no injury ; crops raised at 8,500 feet in this section. 

9. Cannot answer. 

10. State laws. 

11. Mainly regarding work to be done on ditches. 

12. Almost all the eastern part outside of river bottoms. 

13. I think so, but a large allotment should be made as many have large numbers of 
stock. 

14. Put in market unlimited. 

15. Can't say. Eastern part of country excellent for cattle. 

16. Don't know. 

17. Do not know. 

18. Increased where sheep have not been. 

19. Eanges are never fenced, except natural canons. 

20. I think so* 

21. Streams and springs. 

22. Don't know. 

23. Diminished on account of tramping. 

24. No. 

25. Many on account of cattle refusing to graze where sheep have been. 

26. Don't know. Number of sheep generally 2,000. 

27. None. 

28. In some places. 

TIMBER. 

1. Good pine timber everywhere west of eighth guide. 

2. No timber planted as yet except cottonwood and box-alder. 

3. Sale or lease, as saw-mill men cut all over the country and do not pay one cent 
for the privilege ; I speak of this section. 

4. They are generally the same here. 

5. Could not answer definitely. 

6. Indians and campers. 

7. It has been universally here very destructive ; have tried to stop it without sue* 
cess. 

8. They all help themselves to any timber, cutting only the best. 

9. Very certainly. 

LODE CLAIMS. 

1. None. 

2. Know of none. 

3. Ignorant of this. 

4. Outcrops generally. 

5. Can't say. 

6. I think so. 

7. Yes. 

9. Seldom. 

10. Yes. 

11. Don't know any such case. 

12. I think not. 

13. I have only heard of such case. 
15. No. 

PLACER CLAIMS* 

1. About 600 square miles, bituminous coal. 

2. No. 

3. Don't know. 

4. Cannot. 

5. I think not. 

7. Never heard of any such case. 

8. Not to my knowledge. 

9. No. 

37 LC 



578 PUBLIC LANDS. 

Testimony of John Curr, Colorado Springs, Col., stock raiser. (Abstract.) 

" Would suggest that all non-mineral land be offered at $1.25 per acre for six months^ 
then reduce the price to $1 per acre for the next six months, then successively at in- 
tervals reduce to 75, 50, 25, 15, and 10 cents." He believes " it would be for the inter- 
ests of the United States, and more especially of Colorado, to sell land in un limited 
quantities at some such scale of prices as the above, the purchasers being their own 
judges of value." It would require from 2,000 to 4,000 acres of pasturage land to sup- 
port a family. Much land is being fenced which belongs to the government, the 
parties fencing being the owners only of springs. 

" Timber culture would not be practicable here." He advises that the government 
" sell timber lands at auction to the highest bidder." It is common to enter a claim, 
cut timber, and dispose of it, and then abandon the claim. 



Testimony of John George Haas, stock raiser, Pueblo, Pueblo County, Col., on agriculture 

and timber. 

The questions to which the following answers are given will be found by unfolding 
page opposite page 1 : 

Pueblo, Col., November 29, 1878. 

Department of the Interior, Public Land Commission, 

Washington, D. C. : 

Gentlemen : The list of questions you sent me some time ago I have received and 
am ready to answer on some of them to-day. 

My name is John George Haas j my residence is at a place called Chico, Pueblo 
County, Pueblo, Col., and my range is situated on southeast quarter of section 11, 
township 19, range 63 ; my occupation is stock raiser, and have been living on the 
same place above mentioned since the month of July, 1863, without any change. 
When the land was surveyed I went by the instruction of the surveyor by paying 
$206. I received one year after the patent for 160 acres of land— what they call "pre- 
emption law. Then, through the same surveyor's information, I ask for the patent of 
homestead which I could receive by paying $19 and living on the same for five years. 
I did so by proving up and paying $10 more, about eight months ago, and have not 
received the patent yet. 

In my section the land is very poor, scarce of water and timber. It is not fit for any 
other use than for pasture. On account of scarcity of water I don't think that the 
Congress would have any benefit by holding the land out of the market. The sooner 
it will come into private hands the better it will be for the county and State. 

It is not much more land which would be taken by private entries for homesteads, 
as the land itself is not worth much only to those who own the watering places. I 
think if the land should come into the speculators' hands they would be more apt to 
get water on to the land where it could be got on to in anywise to receive benefit for 
their money. It would come cheaper to a man with small capital to buy it from them 
than to undertake it alone or in company with others. 

The climate here is mild and dry. It generally snows very little, hardly ever rains 
till in May or in June, and mostly with showers. I have seen few steady rains during 
the time I have lived here, but it wouldn't pay to plant any kind of crops on account 
of it. The rains here do not help the crops much at any time. The crops are generally 
raised by irrigating from the streams, and good portion of the land ; what cannot be 
irrigated don't pay to work it, as the land is poor. Where the ground is not level the 
land cannot be irrigated, and where the water has to be led a good ways a good deal 
of it disappears into the ground before it comes on to the land. By my experience 
very little water returns to the streams if taken out of the same. 

The water during irrigating seasons is generally used out of all of the streams with 
the exception of the Arkansas River. The water is taken out by ditches made by one, 
two, or more land owners. Nine-tenths or more of the land can't be used for anything 
else, except for grazing purposes, and good portion of it nothing will grow on. 

By my experience I think it will take at least from 15 to 20 acres of land to keep 
onehead of cattle a whole year round. For my family use I generally kill from 20 to 
25 head of cattle a year. 

At the present time a good many cattle raisers fence in the lands to protect the 
grass for winter. Fences were not tried long enough in this section of the county to 
tell whether they will hold cattle during the bad storms. If cattle is in fences the 
owners will try to improve the same for their own benefit, otherwise cattle running 



PUBLIC LANDS. 579 

at large none of the owners will try to improve the same, as the neighbors would get 
benefit through it. 

The supply of water for the cattle comes from springs which are owned by the 
stock raisers. The cattle runs at large in big herds. 

I have never heard of any trouble of surveying corners, but think the time will come, 
as the corners are marked by small sticks and some of the numbers on them are to my 
own knowledge wrong. 

The timber in this part of the country is Cottonwood, but very scarce, and grows 
only on streams which are already owned or claimed up. I live far from solid timber 
lands, and have no knowledge about it, and yet less knowledge I have about lode 
claims or placer claims. If any further information is necessary I will answer as near 
as I can. 

I remain yours, truly, 

JOHN GEORGE HAAS, 

Pueblo, Col., Box 202. 



Testimony of V. V. Banus, attorney at law, Oakwood, Brookings County, Dakota. 

The questions to which the following answers are given will be found by unfolding 
page opposite page 1 : 

1. V. V. Banus, Oakwood, Brookings County, Dakota ; attorney at law. 

2. One year. 

3. Have taken a tree claim and homestead. 

4. Have had more or less practice in cases involving land disputes and settlements. 

5. One hundred dollars for homestead, or $300 for commuted homestead or pre- 
emption. In contesting cases claimants are put to additional expense of from $20 to 
$50 in ex-parte cases, and from $20 to several hundred dollars in other cases. 

6. See no reason why officers at local land offices should not be empowered to make 
cancellation in cases of relinquishment, instead of waiting for returns from Wash- 
ington. Compelling claimants to make settlement and residence on land in cases 
where affidavit for homestead is made before a clerk of the court is a hardship. See 
no reason why same privilege should not be granted as in cases where land is en- 
tered at the land office in person. The men who make the best citizens in a new 
country are those with families, and it is sometimes, and in fact generally, difficult or 
impossible to make an immediate residence, and the expense in travel is great, es- 
pecially in long and narrow districts like those in Southeastern Dakota. Think con- 
testant should have priority in case homestead or pre-emption is canceled under con- 
test trial. Think homestead settlers should have same privilege as to time of making 
entry as in pre-emption cases. 

The above constitutes the material changes that I would suggest. Think the land 
laws are wise, and, as a whole, well administered. Perhaps the government might be 
a little more vigilant in the punishment of perjury. The regulation requiring notice 
of proving up is an excellent one, and operates as a very salutary check to the ras- 
cality and perjury of unscrupulous land speculators. Hope the rule will not be set 
aside, as I understand some are making an effort to have it done away with. 
All of which is respectfully submitted. 
Respectfully, your obedient servant, 

V. V. BARNES. 



Testimony of James G. Boyle, Olivet, Hutchinson County, Dak. (Abstract.) 

A party should have the same right to file before the clerk of a court that he has to 
file in the local land office, and not be compelled to make actual settlement before 
filing. More stress ought to be laid upon the improvements on the land and less upon 
continuous residence. Many settlers find it impossible to occupy the land contin- 
uously, because, having no capital or money to start their farms with, they are com- 
pelled to hire out for wages in order to procure money for their own improvements. 
The intent of the law is often defeated by this requirement. 



580 PUBLIC LANDS. 

Testimony of William S. Cobban, editor, Eoscoe, Moody County, Dak., on agriculture and 

timber. 

The questions to which the following answers are given will be found by unfolding 
page opposite page 1 : 

1. William S. Cobban, editor, Roscoe, Moody County, Dak. 

2. Eighteen months. 

3. No. 

4. News editorial work keeps them constantly before me. 

5. Pre-emption generally proved upon in six months, and then pass into speculators' 
hands. 

6. Pre-emption and timber-cutters acts are benefiting few but speculators. 

7. The repeal of these acts and an amendment to the homestead act, making it com- 
pulsory on the claimant to cultivate five acres of trees and make final proof only at 
expiration of five years. 

10. Give to each actual settler a homestead of 160 acres, requiring him to cultivate 
five acres of timber thereon, and to make final proof only after five years' continuous 
residence, i. e., on prairie lands. 

AGRICULTURE. 

1. Extremes, light ; equally divided, light, none. 

2. Spring ; no. 

3. All. 

12. One-tenth. 

13. Six hundred and forty. 

14. No. 

15. Good as any in the West. 

19. No. 

20. No. 

21. Wells mostly. 

22. Six. 

23. Increased. 

24. No. 

28. But little. 

TIMBER. 

1. Scattering timber along Sioux River, of little account. 

2. Willow, box elder, and cottonwood. May to October. 



Testimony of Jerry D. Flick, land agent, Bockport, Dak., on agriculture and timber. 

The questions to which the following answers are given will be found by unfolding 
page opposite page 1 : 

1. Jerry D. Flick, land agent, Rockport, Dak. 

2. Resided in county seven years, in Territory fourteen years. 

3. Homestead, pre-emption, and timber-culture enties have been secured by myself. 

4. My occupation has given me opportunities to learn the working of the land laws. 

5. Cost for homestead $32, except improvements. Time, five years, uncontested cases. 

6. A notary public should be allowed to make homestead affidavits as well as court 
clerks. 

7. Our lands are well adapted for agricultural as well as pastoral purposes. No 
timber. 

8. The government surveyor, who does 'the subdividing or runs the subdivisional 
lines would be the proper person to refer to as to character of lands, &c. 

9. Am not well enough posted to give an opinion as to the best method to adopt. 

10. The timber-cutting act should be confined to actual settlers of the country or 
land district. As it now exists, parties from the Eastern States come and enter a tract 
of land and never come near it again until he wishes to make final proof. 

AGRICULTURE. 

1. Climate very healthy; sufficient rains for crops; seasons about as in Illinois ; very 
little snow falls; irrigation not required. 

2. In spring and summer. 

3. All of the Territory of Dakota. 



PUBLIC LANDS. 581 

5. None. 

6. No irrigation required for wheat. 

7. James or Dakota River. 

8. I am not acquainted with irrigation j none of the country requires it. 

12. One-twentieth part. 

13. It is ; 80 acres is sufficient for each settler. 

14. Not at present, and when it is done the quantity should be limited to 160 acres. 

15. Three acres ; compares favorably. 

16. Three cows. 

17. Two head. 

18. Increased. 

19. We have no fences. Herd law is in force here. 

20. I think not. 

21. The James River and several small creeks in the county. 

22. Five head. 

23. Diminished. 

24. Not very well. 

25. Pastures will be ruined by double pasturing. 

26. Cattle, 1,000. Sheep, 3,000. 

27. None. 

28. A great deal of trouble is experienced by settlers and county surveyors. The 
United States Government should pass, for use, more stringent laws in regard to dep- 
uty surveyors. 

TIMBER. 

1. We have no timber. 

2. Cottonwood, box-elder, and black walnut. 

3. Have no suggestions to offer. 

4. Have nothing to offer on the subject. 

5. Cottonwood sprouts out from the stump. 

6. Usually caused, by roving bands of Indians. 

9. I think they would. 



Testimony of C. J. B. Harris, lawyer and real-estate-dealer, Yankton, Dak., on agriculture 

and timber. 

The questions to which the following answers are given will be found by unfolding 
page opposite page 1 : 

1. C. J. B. Harris, lawyer and real-estate dealer, Yankton, Dak. 

2. Nine years. 

3. Yes, about 500 acres, with soldiers' additional rights. 

4. Making papers and filing for settlers. 

5. Uncontested pre-emption, $210; homestead, $25; time, six months' preemption; 
homestead, five years. 

6. Yes ; contests should be made returnable before some officer of county where the 
land lies. 

7. Nearly all excellent agricultural land in Southeastern Dakota. 

8. Class it all arable. 

9. Present system needs no change. 

10. I cannot suggest any improvement. 

AGRICULTURE. 

1. Climate about like Central and South New York ; less rainfall and snowfall. 

2. In the spring and summer, when most needed ; less than farther east, but in- 
creases with settlement of the country. 

3. All or nearly all. 

4. No irrigation here. 

5. None. 

15. Five acres. Better than in New England or New York. 

16. I do not know. 

17. About ten. 

18. Increased. 

19. Do not fence generally. Herd law in force ; cattle can be confined with safety 
by fences. 

20. Yes. 



582 PUBLIC LANDS. 

21. Average ; a great many rivers and lakes ; also some large spaces without water. 

22. I do not know. 

23. I do not know. 

24. Yes. 

25. I do not know of any. 

28. Yes, some surveys are very poorly made and marked. 

TIMBER. 

1. Considerable on Missouri River ; mostly cotton wood ; some hard wood. 

2. Walnut, maple, cottonwood, cedar, and pine ; rapid growth ; cannot state time. 

3. Nearly all disposed of about here. 

5. Yes, of cottonwood ; very rapid growth. 

7. Timber on school sections has mostly disappeared ; other timber lands entered. 



Testimony of James Soles, Fargo, Dale., on agriculture and timber. 

The questions to which the following answers are given will be found by unfolding 
page opposite page 1 : 

Fargo, Dak., September 29, 1879. 
Public Land Commission, Department of the Interior : 

1. My name is James Holes ; residence, Fargo, Dak. ; occupation, seed- wheat raising. 

2. Over eight years. 

3. Yes ; under the pre-emption law. 

4. Thirteen years' experience on frontier. 

5. Time, six months to a year ; expense, legal land-office fees. 

6. In case of death of a land officer, an unnecessary delay in the appointment of a 
successor. 

7. They are agricultural, pastoral, mineral, and timber lands. 

8. By an examining commission. 

9. One hundred and sixty acres for the agricultural portion and 640 for the pastoral. 

10. Six hundred and forty acres pastoral land are a homestead. 

AGRICULTURE. 

1. Cold in winter and warm in summer ; rainfall ample in Eastern Dakota ; snow- 
fall below the average of Northern States. 

2. From April till November ; the most in June ; least in November. Yes; it comes 
when most needed. 

3. The entire Territory of Dakota. 

4. Do not know of any portion that requires irrigation. 

5. None. 

6. Have never measured the rainfall. 

7. Plenty of rain. 

8. Don't know anything about irrigation. 

9. Never saw an irrigating ditch. 

10. Have used no water for irrigating. 

11. No conflicts have arisen. 

12. About one-fourth of Western Dakota. 

13. It is practicable to establish homesteads on pastoral lands and give 640 acres to 
each settler. 

14. It is not advisable for the government to sell these lands at private sales. 

15. About 4 acres. 

16. Fifty head of cattle. 

17. Do not know. 

18. Neither one. 

19. No, not the regular herders. 

20. No. 

21. Running streams. 

22. About five. 

23. Diminished. 

24. Yes. 

25. Do not know of any. 

26. They are herded in herds from 10 to 60. 

27. Would suggest that poor surveys be not accepted by the government. 

28. Yes. The survey is miserable. 



PUBLIC LANDS. 583 



1. Fifty-six thousand acres in Cass County, hard wood. 

2. Cottonwood, box-elder, elm, soft maple, butternut, and black walnut, &c. 

3. Charge stumpage on pine lands ; dispose of hard wood to the homestead and pre- 
emption settlers. 

4. Yes ; would classify them. 

5. Yes ; there is a second growth of timber, which in my estimation should be free 
from taxation, both timber and land on which it grows, in the prairie counties of the 
west. 

6. Generally set by Indians or white men ; are very destructive. Stringent laws 
strictly enforced. 

7. Persons or corporations cutting government timber should be made to pay its full 
value. 

8. They generally steal it. Felled timber is personal property. 

9. Should have local agents to look after government timber. 
Know nothing of lode claims or placer claims. 

JAMES HOLES. 



Testimony of H. N. Maguire, Rapid City, Dak., relative to defect, fyc, in the working of 
the public-land laws, homesteads and pre-emptions, desert-land act, timber- culture act, and 
mineral-land laws, coal, mineral claims and claimants, pastoral and timber lands, surveys, 
mining records, litigation, mints, mineral-land offices or courts, placer ground, titles, irriga- 
tion, agriculture, and land grants. 

Eapid City, Dak., December 7, 1879. 
To the Honorable Public Land Commission, Washington, D. C. : 

Gentlemen : Your list of interrogatories regarding the public-land system having 
just reached me, and the time to answer them in detail, less the seven or eight days 
required to carry my letter from the Black Hills to the national capital (that it may 
reach you by the 15th instant), being but a few brief hours, my treatise will not be 
as elaborate as I could wish, but I shall endeavor to "cover all the ground." 

In 1859 I was one of the hopeful thousands who were carried away by the Pike's 
Peak gold excitement, and since that time I have been engaged in business in Utah, 
Colorado, Nevada, Arizona, Idaho, Montana, and Dakota, and have been identified 
with the material interests of the Black Hills of Dakota since the early spring of 1876. 
It has always been my disposition, and generally a necessity of my business interests, 
during this experience of twenty years in the far West, to study climatic conditions, 
mineral and agricultural resources, and the various methods under which government 
relinquishes its primary right to the soil and regulates its transfer to private owner- 
ship. 

Detailing practical examples would probably be the most effectual way of exposing 
defects in our public-land laws and suggesting needed amendments ; and as I have 
had some personal experience in the premises, you will excuse me for including it 
among the examples I shall give. 

1. Some years ago, being at the time engaged in professional business in Bozeman, 
Mont.., I filed in the district land office, under the pre-emption act of 1841, on a quar- 
ter section of land five or six miles south of that town. I had a comfortable cabin 
erected and moved into it with my family. I hired a farmer and fence builders, 
and sent to New England and New York for small fruits and shrubbery, and within 
six months from the date of settlement had expended well on to a thousand dollars, 
besides having given a prior claimant a valuable consideration to relinquish his right 
at the time I took possession. During the first six months I rode each morniug to town 
to attend to my professional business, returning at night. It was my home, my resi- 
dence, to all intents and purposes. But when winter approached I removed back to 
my town residence, and there remained until spring. Then I returned to the ranche, 
having built a new and more comfortable residence, and employed, as the year before, 
& practical farmer. My business affairs assumed such a shape that I had to return to 
town the next summer ; and fearing my possessory right might be impaired by the 
step, and having up to this time paid but little attention to the practice under the 
public-land laws, I referred the matter to an attorney, who made a specialty of that 
line of business. " Abandon your pre-emption filing and homestead," he wrote me, 
" a homestead entry cannot be easily defeated." I followed his advice, and did not 
get back to my ranche until eight months after, six months' absence being prima fade 
evidence of abandonment, but had a personal representative on the ground most of 
the time, who occupied the cabin first built ; and when I did get back I could only 
remain on the land with my family four months, when I was again compelled to re- 



584 PUBLIC LANDS. 

move to town. So far I had expended in improvements a thousand dollars more than 
I had realized, and about then (the summer of 1875) I got " the Black Hills fever," 
and arranged for my family to visit Eastern relatives, while I sought a change of luck 
in the new Eldorado. At this time I had become too well posted on the principles and 
practice of the public-land laws to squander any more money on my ranche, and so 
transferred my improvements under a quit-claim for a trifle. Having relinquished my 
right under the pre-emption law, to change to a homestead, I was not allowed to re- 
sume my rights under the former, the technical ruling being that I had " once had the 
benefit of the pre-emption law," and I could not prove up under the commutation 
provision of the homestead law, because I could not prove I had been " residing upon 
the land continuously for at least six months," and was still a resident thereof ; and 
so I had to leave the land to the next comer, though both my pre-emption and home- 
stead entries had been made in good faith, and I had, immediately following my first 
settlement, resided upon the land six months continuously, and had expended upon it 
over a thousand dollars, besides devoting much thought to it and performing no little 
personal labor. Thus, under the technical rulings, I have exhausted both my pre- 
emption and homestead rights, and without getting an acre of land. [A settler does 
not exhaust his pre-emption right by filing an abandonment, as a general rule, but he 
does under the rulings in the case cited, when he continues on the same tract, chang- 
ing from a pre-emption to a homestead right.] 

2. A poor old settler, named Noah Gee, purchased the possessory right of another home- 
steader, named Llewellyn, to a tract of land northwest of Bozeman, and immediately 
settled upon it with his large family, the prior settler having given him a simple unat- 
tested bill of sale, and then left for parts unknown. A few weeks after the old gen- 
tleman came before me, as county judge, and applied to enter the land under the home- 
stead law, and the regular application and affidavit were sent in to the district office. 
They were returned on the ground that Llewellyn's entry had not been canceled, and 
that Gee had no regularly witnessed and acknowledged deed of conveyance from him. 
Then followed a fruitless and vexatious effort on my part to find Llewellyn, to have 
him execute a deed complying with the technical requirements of the Land Depart- 
ment. The commissioner was appealed to, the facts proved by affidavit of the settler 
having paid all his money to the former occupant, of his having settled upon the land 
with his family, and of the unavailing efforts that had been made to ascertain the 
whereabouts of Llewellyn ; but the answer came back that Llewellyn's entry could 
only be canceled through the forms of a regular contest ; and while Gee's attorney was 
engaged with the case, notice came that the Northern Pacific Railroad Company's in- 
demnity lines had been fixed by their filing in the Interior Department the selection 
of their route, and the line in dispute being on an odd section it was held to be " rail- 
road land," though the iron track was still 500 miles away in a straight line. This left 
Llewellyn, who had sold out and left the country, the only adverse claimant of record 
to the railroad company. When I left that section, it seemed to be inevitable that the 
old man would lose both his purchase money and improvements. I afterward learned 
that he died on the tract, leaving as his only legacy to his children the fruits of hard 
work performed on land to which another had the legal title. [Those lands were after- 
ward restored to settlement.] 

3. For a full year a poor man named Carrol had lived with his family, and worked 
and struggled in poverty on a piece of land eight or nine miles northwest of Bozeman, 
which he had regularly filed upon under the pre-emption act. Adversity overwhelmed 
him, crops failed, sickness visited his family, carrying off a son, and he could " stem 
the tide " no longer. He came to me and inquired whether it would be possible to save 
something from the wreck. I told him he had fully complied with the law so far as 
residence and improvements were concerced, and that he could " prove up," pay for 
his land, and sell it to whoever he pleased. But how would he raise the money to pay 
the government price ? He had to swear in making entry he was acquiring title for 
" his own exclusive use and benefit." It was impossible for him to continue on the 
claim ; his resources were exhausted, a Rocky Mountain winter was whitening the hills, 
and he had a large family to support. My sympathies were touched at his story, which 
I knew to be true, and I told him to call again, having mentally resolved to help him 
out of his difficulties if I could. His claim was one of natural advantages, and I had 
a friend make me an offer for it, which would allow Carrol enough to get out of the 
country after paying the government price, but not near enough to remunerate him 
for the labor and improvement he had put upon the land. 1 then had my clerk make 
out a deed, ready for Carrol's signature, convoying the land to this friend, and sent for 
him to come in with his witnesses. All the necessary facts were proven by credible 
witnesses, the required personal affidavit was made, and I passed over to the receiver 
$200, with his official fee ; and then Carrol signed the deed, and it was sent to the 
county recorder. But my clerk, expecting the receiver would be at my office the day 
before he came— as it had been arranged for him to be — dated the deed one day too 
early, and so it went on record. A mercenary land agent two or three years after over- 
hauled the records for flaws he might take advantage of in his own interest, and dis- 



PUBLIC LANDS. 585 

covered the conflict in dates. The facts showing " a case," the matter of connection 
was brought to the attention -of the commissioner, whereupon he ordered the entry- 
canceled, and intimated it would be altogether the proper thiug to do to arrest and 
prosecute Mr. Carrol (a man of unquestionable honesty) for perjury. Yet it has been 
the practice, since the first land office was opened, for claimants to mortgage or sell 
outright their land before the ink was dry on the receiver's certificate of final pay- 
ment ; at leas*; one-third of all the lands entered are so disposed of. 

3. Another case, involving great personal hardship, is reported from Northern Dakota, 
and, considering the general depression which had existed throughout the country- 
previous to the present revival of trade and industrial activities, I have no doubt it is 
but one of many of the same kind . A claimant, having expended all his available means 
and performed a year's personal labor on a piece of land he had filed on under the 
pre-emption law, presented himself at the district office to offer his final proofs and 
make payment. His proof as to residence and value of improvements was altogether 
satisfactory; but when he was asked the formulated questions, " Do you own 320 acres 
of land in any other State or Territory?" and "Have you left land in any other State 
or Territory to settle on government land?" he was struck with dismay. He felt that 
the last-earned home of a long-life struggle had been wrenched from him, for he could 
not give negative answers. He ivas the legal owner of 320 acres in the State he came 
from ; but he said he was willing to swear that, though the legal title vested in him, 
the land was hopelessly mortgaged ; that he had little, if any, hope of ever redeeming 
it ; and that this explained why he had left his old home and sought a new one on the 
prairies of the West. He was not allowed to make entry. The law and rulings were 
both against him, and it is presumable he would consider himself fortunate to get for 
his improvements half their cost. 

5. There is a large class of enterprising and every way worthy citizens who have 
been in the vanguard of emigration since Chicago was a frontier village. Life with 
them has been one continuous battle scene. The nation, and civilization have been 
benefited — the former strengthened and the latter extended — by their struggles and 
sacrifices ; yet poverty has uniformly been their lot. The large majority of this class 
exhausted their pre-emption right among the first who availed themselves of the law 
of 1841 ; they afterward took the benefit of the homestead act of 1862 ; and again they 
are "blazing" paths in the wilderness, courageous as ever, but without that physical 
strength and endurance which belong to youth and the meridian of life. Around them 
are unoccupied thousands of acres, but it is perjury for them to drive another location- 
stake ; to seek, under the law, a little patch of ground of their own to be buried in. 
It is easy to distinguish this meritorious class from those— none of whom are ever con- 
victed — who make a business of obtaining lands in one district after another by perjury 
and subornation of perjury. 

The above are all practical examples of general application, andtothe claimant in each 
the public-land laws have proved "a delusion and a snare." To apply too closely the 
jurisprudential maxim that "ignorance shall not be plead to excuse violation (by 
omission as well as commission) of law," in administering the land laws, often defeats 
the beneficent object of their enactment. The general reason upon which the maxim 
is based, that of public policy, does not extend to the public-land laws, which affect 
but a few of the entire population, are intended to reward the bravery and enterprise 
of those who widen the boundaries of civilization and add to the nation's wealth by 
leading in the settlement of the public domain. In their behalf, if at any time or 
under any circumstances, technicalities should be disregarded when they contravene 
substantial justice. If the settler builds his cabin and turns his first furrow with the 
honest intention of becoming a freeholder by complying with the requirements of the 
land laws, and no prior right exists to the same location or any part of it, he should 
be held, by virtue of his improvements so made in good faith, to have acquired equi- 
ties in the tract which could not be defeated by subsequent proof of his being disqual- 
ified to make entry under the technicalities "of the law. The consideration to the 
government is the act of settlement, the increase of the taxable wealth of the country, 
by adding to it cultivated acreage and extending the means of production. But if 
title should be sought through fraud, let the offender be convicted and punished under 
the criminal laws. 

"Bat it is impracticable," I will be told, "subversive of all law and order, to disre- 
gard, relax, or modify the express enactments of the legislature to relieve against the 
hardships of individual cases." To this I answer, first, that the Interior Department 
has, in my humble judgment, established rules and issued instructions, under the gen- 
eral delegated authority of Congress to that department to prescribe the methods of 
executing the land-laws, entirely too complex and. exacting to be in harmony with their 
generous, humane spirit and the motives and objects of their adoption; and, secondly, 
Congress has before it the objectionable features, as shown by experience, and can, 
by amendatory legislation, give the country a more perfect system. For instance, 
taking in their order the individual cases above cited — 

I. Should not the fact that I had expended much money and time on a tract of land 



586 PUBLIC LANDS. 

without having acquired title give me an additional claim to make new filings, instead 
of disqualifying me from ever again seeking to make entry under either the homestead 
or pre-emption law ? 

II. In the second case, would not substantial justice have been done by allowing 
the unfortunate settler who succeeded to the possessory right of another without 
(through ignorance of the legal principles governing the transfer of realty) taking a 
regularly executed deed, to have made a provisional entry, subject to the prior right of 
the first claimant of record — such provisional entry to be, under the principle of rela- 
tion, considered as absolute when he came in with his final proofs ? 

III. In the third case, why should a variance of one day, caused by a clerical error, 
between the date of the day of transfer and the receiver's certificate — the government 
having received the price fixed upon the land, and the evidence being that the law 
had been complied with as to residence and value of improvements — have subjected 
the unfortunate pre-emptor to a threat of prosecution for perjury and the innocent 
purchaser to a forfeiture of the land he had honestly paid for. 

IV. In the fourth case, would it not have been good policy and in harmony with 
the general spirit of the land laws to have allowed the claimant to make entry upon 
his filing in the district office a certified abstract of title of his former homestead, and 
making affidavit, supported by the oaths of two credible witnesses to his credibility, 
that he was not worth enough, over and above other debts and liabilities, to pay off 
the mortgage ? 

V. In regard to the class referred to in my fifth citation, would it be in the slightest 
degree detrimental to the public interests, and would it not be in harmony with the 
motives and objects which were governing considerations in the adoption of the land 
laws, to make an amendment for their express benefit which would be somewhat of 
the nature of a bankrupt law for the benefit of the unfortunate in business ? Give 
the old pioneers one more chance, upon their filing satisfactory evidence that they are 
landless, unable to purchase land, and have owned no land within five years next pre- 
ceding the date of their application. 

Gentlemen, there are many other defects and injustices, as I conceive them to be, 
in the practical workings of the public-land laws ; but I cannot detail them within 
the time at my command and treat of other matters embraced in your list of questions 
which I desire to consider. But this particular fact I should like to impress upon 
your minds, that the experience has been that those who willfully violate and evade 
the provisions of the public-land laws are never called to account for their wrong-doing, 
while well-disposed and upright men are often subjected to great hardship and loss by 
the agents of the government sacrificing the spirit of the land laws to their own arbi- 
trary and inflexible rules ; and thus, too, have frauds been made possible, as the sharks 
of the land department know exactly what is required in the way of forms to acquire 
titles fraudulently, and they have as thoroughly systematized their operations as has 
the Commissioner of the General Land Office the government's. That class for whose 
express benefit the pre-emption and homestead and other land enactments were 
adopted — those who seek to acquire homes under them — are never guilty of intentional 
violations. Those who intentionally violate the law have no fear of its penal provis- 
ions ; they are dangerous only to those who ask for a quarter section in good faith for 
the purpose of cultivation, and who do not make a business of studying the tricks of 
practice. The " professional swearers " about land-offices were never known to build 
a cabin or turn a furrow. Nearly the whole of Goodhue County, Minnesota, the most 
valuable farming county of that State, was fraudulently covered with Sioux half- 
breed scrip by bogus guardians of the mixed-blood children, for whose benefit the 
scrip was originally issued, the majority of the intended beneficiaries never having 
got a rood of land or a dollar for their scrip. The agricultural college scrip donated 
to the various States was a huge "job." Some of the States accepting it only realized 
from 25 to 60 cents on the acre represented ; yet the bulk of it has been palmed off ou 
the pre-emptors at its par value, the last robber in handling it being the attorney en- 
gaged to prepare the claimant's final papers. Invariably the moneyed shark in the 
background plans the fraudulent entry first and finds his bogus claimant afterwards, 
the latter in no sense of the word being a member of that noble army of pioneers who 
have conquered the wildernesses of the continent and carried the standards of Amer- 
ican civilization from the lakes to the Pacific. • 

I view the " desert-land law," as it stands, to be in effect an offer of a premium for 
successful fraud in acquiring land titles, and a piece of class legislation in the interest 
of the capitalist against the bona-fide settler in good faith. Was it asked for by the 
practical farmers of Utah, Idaho, Montana, Arizona, or any other section where irri- 
gation is indispensable? Pre-emptors and homesteaders in those countries never 
thought of such a measure, but bear testimony with one voice to the inexpensiveness 
and slight incouvenience of cultivation by irrigation, and the great advantages they 
have in opening farms in the valleys of the mountaius, in natural conditions, over the 
old settlers in the organized States. Wherever water can be found to irrigate a section of 
fertile soil there always are, or will be, four pioneers ready to bring water onto it and 



PUBLIC LANDS. 587 

reduce it to cultivation, and thus become actual settlers in good faith. But I would 
favor government adopting measures looking to the reclamation by irrigation of ex- 
tensive districts, where the outlay in money and extent of labor involved would be so 
great as to require large capital. If General Fremont's scheme to turn the waters of 
the Colorado River over the arid basin through which it flows should be realized, the 
result would undoubtedly be to give the nation a realm of Arcadian beauty and Italian 
fruitfulness. 

The timber-culture act, considering the general character of the public domain still 
nnappropriated, is the wisest measure of the kind ever adopted by Congress, and I 
submit that if it is amended at all, the change should tend to still further encourage for- 
est culture on our timberless plains. It is beneficial in the highest degree to the citi- 
zen availing himself of its provisions ; but the greatest resulting benefits will descend 
to posterity ; and it operates to increase the national wealth from sources that would 
otherwise be measurably non -productive. 

Radical reform is called for in the establishment of land-offices. The rule has been 
ro locate them at the centers of political influence, thus making them subservient to 
the local influences of the places securing the location, instead of establishing them 
where the greatest number of agricultural settlers would be accommodated. 

I have not the time to elaborate upon the practical working of the mineral-land 
laws, but would suggest that as they, like the agricultural-land laws, are primarily 
intended to encourage the development of the natural resources of the country — the 
first step in doing which is invariably taken by the poor man, the prospector — sound pol- 
icy dictates that future legislation in regard thereto should mainly be directed to simpli- 
fying and making less expensive the methods under which rights by discovery are es- 
tablished. The capitalist is always able to take care of himself. The discoverer of 
the great Comstock mineral vien, which has made millionaires by the dozen, did not 
get as much as $100 for his immensely valuable find, and in a fit of despair, without 
a penny in his pocket, he blew out his brains. Within seven miles of where I am now 
writing the discoverers of the only producing silver-mine in the Black Hills— three 
brothers named Merritt — are following a promising coal- vein without enough money 
ahead to buy a month's provisions. I believe they will open a valuable coal-mine ; 
and what then ? They will be at the mercy of the capitalist. Under the provisions of 
of the coal law they must file on the land (now unsurveyed) within sixty days after 
the plat of survey is received at the district office, and within one year thereafter must 
prove value of improvements and pay for the land at the rate of $10 an acre. The plat 
embracing the land will be on file in the district office within three months, and within 
fourteen months from that time they must, iu order to secure a quarter section each, 
raise about $5,000, besides providing for living expenses, purchasing tools, &c, from 
now until then ; and they cannot realize by selling coal until a railroad shall have 
been constructed near their mines. No other discovery of a regular coal-vein has yet 
been made on the eastern side of the Black Hills. Men so situated cannot, under the 
existing law, make secure their rights by discovery ; and without such men mineral 
discoveries would rarely be made. I would favor an ameudment to the coal law allow- 
ing the discoverer of a coal-vein on the public domain, not less than fifty miles from 
any other known coal-beds, or each one of any association of discoverers, not to exceed 
four in number, forty acres of land embracing the discovery as a gratuity, and give 
him or them one year from date of discovery within which to file the required proofs. 
I also think it would be good policy to extend the benefits of such a law, modified 
to specifically apply to the different kinds of mineral found, to all discoverers of mineral 
in new regions. As the mineral laws now stand, the man with a little money in his 
pockets can do better to remain idle and watch for opportunities to take advantage of 
discoveries made by others than to explore himself. 

I think the law fixing the surface extent of mineral veins ought to give uncondi- 
tionally all within the side lines to the discoverer. Overlapping surface rights are the 
pregnant cause of nine- tenths of the litigation over mining property ; and when these 
contests get into the courts the party having the most money is usually the monkey 
that weighs the cheese. 

I do not believe it would be to the disadvantage of the mineral discoverer to cut 
down claims by right of discovery from 1,500 to 500 feet, "linear measurement along 
the line of the Vein^' for in nearly every instance he transfers his right on what is dis- 
closed in his discovery shaft, and the capitalist is therefore the one most benefited by 
the extent of the claim ; but if this change should be made I would favor square loca- 
tions, holding all rights within the boundary lines inviolate on the surface. The miner 
should be allowed to follow his vein wherever it leads below, the prior location taking 
the ore where two veins intersect — which is the existing rule. 

You ask "how the government can best ascertain and fix the character of the dif- 
ferent classes of land." It is, in my opinion, impracticable for the government to at- 
tempt to do anything of the kind. The settlers or locators will seldom fail to claim 
the land for that for which it is most valuable, if known, and then the rules govern- 
ing that specific kind of land — " agricultural, mineral, pastoral, timber, or otherwise " 



588 PUBLIC LANDS. 

—can be applied. There is not much danger of the government being defrauded by- 
false representations as to character, for adverse claimants will nearly always put in 
an appearance when one tries to acquire title to valuable mineral ground as an agricul- 
tural claimant. Consider, gentlemen, that years ago Lieutenant Mullan graded a 
military wagon-road from Fort Benton to Fort Walla Walla across some of the richest 
placer districts that have been worked in modern times, his expedition embracing a 
full corps of scientists, and reported that he found no evidence of the existence of gold 
on the route, and you will concede the impracticability of governmental attempts to 
classify the different natural conditions of the public lands. That can only be done, 
so far as mineral lands are concerned, by individual enterprise, stimulated by the 
hope of finding a fortune. 

As to pastoral and timber lands, the value of which as such can be estimated by 
viewing them, and should be designated by the field-notes of survey, title to them 
will not be generally sought by this generation under the pre-emption and homestead 
laws ; and I would suggest that it is not necessary for Congress to legislate at all in re- 
gard to the former, and that the latter be disposed of, in small tracts, by lease under 
long terms — until cultivated timber could be grown large enough for domestic uses — 
reserving to the miner the right to enter and explore and mine for minerals. This as- 
sumes that contiguous. farmers would be allowed to enjoy the grass lands as tenants 
in common, subject to the local laws regulating and defining rights by mere occupancy, 
and that the lessees of the timber lands would only acquire the right to cut and ap- 
propriate the growing timber. The general government (or State by cession to it) re- 
taining the title paramount (except such portions of the timber lands as might be 
transferred under qualified mineral patents), the time would come — the tillable area 
having been extended to the furthest limit by the necessities of increasing population 
— when both classes of lands, now comparatively valueless, would be a rich source of in- 
come to the public Treasury. 

Before leaving this branch of the subject, I would suggest that the law in regard to 
quartz-mill sites needs changing. It grants to mine-owners five acres of " non-min- 
eral land " for this purpose. Without a mill-site a quartz-mine is barren property ; 
and it is almost impossible to find five acres of " non-mineral land," in the strict sense 
of the term, conveniently near a quartz-mine ; and, besides, the ease with which pre- 
tended mining claims can be set up on any tract of ground of that extent, near a 
developed mine, has attracted to the mining districts a class of bad men, locally known 
as "blackmailers," unscrupulous vagabonds, who make a business of asserting ad- 
verse rights expressly to be bought off. 

I am not well enough acquainted with the different systems of surveys to express a 
valuable opinion upon their respective merits ; but would suggest, as settlers on the 
public lands are usually poor men, that it is high time to put a stop to the system of 
" making surveys on horseback," which means for the subcontractors having charge 
of the work in the field to run out the exterior lines of the townships, hurriedly es- 
tablish the section and quarter-section lines with cabalistic marks no one can un- 
derstand (and which it is to their interest to make unintelligible to the settlers), and 
then draw their vouchers. The established rules of marking boundaries are seldom 
observed. This is an abuse needing correction. • 

In the Black Hills, " croppings " are often wider than the maximum legal width of 
veins. 

In all mining countries mineral veins frequently so deviate from the direction of the 
supposed trend in locating them as to go outside the established side lines. Hence the 
justice and expediency of the rule, " follow the vein underground wherever it leads." 

As to the suggestion that mineral discoveries be recorded in the government land- 
offices, and that the officials thereof be invested with exclusive jurisdiction of all ques- 
tions regarding adverse rights (of course with the right of appeal to the Commissioner 
and Secretary of the Interior), I would suggest that this might necessitate the estab- 
lishment of a multiplicity of land-offices in the mining regions ; and as a matter of 
convenience and security to themselves, though incurring additional expense, pros- 
pectors would undoubtedly prefer, if this change were made, to initiate their rights by 
district or county record, as now provided, and then file a certified copy of such first 
record in the land-office, for the reason that the former offices might be more immedi- 
ately accessible. And when a location is made the discoverer is anxious to have his 
record made at the earliest moment. And if all this kind of business should be trans- 
ferred to the Interior Department direct, I would suggest that a distinct class of land- 
offices be established, to be known as "mineral-land offices," to be given exclusive orig- 
inal jurisdiction over mineral lands, and that they be officered by good lawyers, who 
have had practical experience in raining litigation. The responsibilities of their posi- 
tion would, be grave. Their adjudications would at times involve property rights to 
the extent of hundreds of thousands of dollars, and it would be a mockery of justice 
and a disgrace to the government to give such appointments to those who had done 
the most effective service on the stump or at the ballot-box. So far as the Black Hills are 
concerned, if Dakota is not at once admitted into the Union or a law passed extending 



PUBLIC LANDS. 589 

her judicial facilities, something of this kind will have to be done, as our local courts 
are overwhelmed with the increasing business brought before them, the bulk of which 
is mining litigation. But as admission might not be the proper remedy for all the min- 
ing Territories, and probably the same state of facts would apply in a degree to all, 
we here have a cogent argument in favor of establishing "mineral-land offices" (or 
courts) on the general plan outlined. 

If discoverers of mines of the precious metals, like those of coal deposits, should be 
compelled to acquire title by purchase within a given time, I would make that time 
not less than three years. The sound policy of favoring discoverers as against capi- 
talists is obvious. 

I never knew an application to be made for placer ground with the main object of 
thus acquiring title to a vein. I do not believe the general law, so far as it relates to 
placers, could be improved. It is seldom invoked, the local rules almost universally 
prevailing ; and strong companies will never be allowed, under the operation of the 
local rules, to acquire vast bodies of alluvial gold deposits which are available to the 
poor miner. 

In practice, as well as under the decisions of the courts, it is nearly impossible for 
claimants under other than mineral titles to prevent mining claimants from develop- 
ing their ground. 

It is questionable whether it will ever be necessary to resort to irrigation in the 
valleys of the Black Hills of Dakota. Excellent crops have been raised three years in 
succession without irrigation. But should it be found, by future experience, that irri- 
gation will have to be resorted to in seasons of exceptional dryness, an abundance of 
water for the purpose can be had from the Rapid, Spearfish, and Redwater Rivers, 
which drain the most extensive farming districts of the Black Hills. 

Moving on west and northwest from the Black Hills, until the valleys of Northern 
Wyoming and Montana are reached, we find increasing dryness in the atmospqere ; 
but no part of the continent is better watered than those regions, almost every canon 
having its flowing stream, and the valley lands are usually sloping, so irrigation adds 
but little to the labor and expense of cultivation. Millions of acres lying between the 
Black Hills and the headwaters of the Columbia, now supposed to be worthless except 
for grazing purposes, will in time be reclaimed and rank among our very best wheat 
lands. I write and form my conclusions from personal observation. 

If mountain soil can be injured by irrigation, it has not yet been, to my knowledge. 
The oldest cultivated soil west of the Missouri River, in large bodies, is in Utah, where 
irrigation has always been resorted to, and there "worn-out soil" I never saw or heard 
of. And in Montana repeated irrigation seems to have the effect of making the soil 
quicker and deeper — new mineral fertilizing elements, I presume, being disclosed, and 
imparting their virtue with each successive following, from the water acting as their 
solvent. 

There are scarcely any valueless valley lands anywhere in the mountain regions of 
the United States that it is possible to irrigate. In Eastern Oregon and Washington 
Territory, in California, Nevada, Utah, Arizona, Montana, Idaho — everywhere, on either 
side the great Rocky Mountain Range — nearly all below the sterile snow-lines are nat- 
ural grazing lands, or can, if possible to irrigate, be reduced to cultivation. The sage- 
brush and prickly-pear wastes, so long thought to be utterly irreclaimable, have been 
made to " blossom as the rose." The " Great American Desert" of the past generation 
has been, by the progress of American enterprise, obliterated from the maps and buried 
beneath the richly-producing furrows of the pioneer farmer. The high elevations, 
generally, from the head of the Missouri to the mouth of the Colorado, are covered 
with noble forests or nutritious grasses, or are veined with fissures of gold and silver 
rocks, while coal and all the base metals are abundantly found. Believe me, gentle- 
men, the grand march of American progress will not be retarded by the mountain 
barriers between the older States and the young civilization of the Western seaboard, 
but accelerated rather. There seems to be, at every part of this vast empire so far as 
explored, incentives to human enterprise. Over all these vast regions new trade-cen- 
ters will be built up and connected by railroads ; and, as it is only through the toil 
and sacrifices of the producing classes such achievements are possible, it is earnestly 
hoped that the last grant of lands has been made to monopolists— that every acre will 
be reserved for homes for the brave souls who lead in the work of subduing the wilder- 
ness and enlarging the fields of honest industry. 
Respectfully submitted. 

H. N. MAGUIRE. 



590 PUBLIC LANDS. 

Testimony of Charles T. McCoy, register of deeds and clerk' of the court, Bon Homme, Bon 
Homme County, Dakota, on agriculture and timber. 

The questions to which the following answers are given will be found by unfolding 
page opposite page 1 : 

1. Charles T. McCoy, Bon Homme, Bon Homme County, Dakota, register of deeds, 
and clerk of the courts. 

2. For twelve years. 

3. Yes ; have acquired title to land under homestead law. 

4. Have been clerk in the United States land-office at Springfield, Dak., and also 
observed closely the general workings of the laws. 

5. From personal experience. The title to my homestead cost me, cash to the gov- 
ernment, $18 ; house, $75 ; breaking 18 acres, at $5 per acre, $90 ; incidental expenses, 
$25 ; total, $188. Breaking at that time, 1868-69, and all other material was about 
double in price of what it is at present. 

6. Yes ; in the first place, I think that when a party commences his contest in good 
faith, and deposits his fee and has all the expenses to pay, he should have a prior right 
to the land, and if the contest is decided in his favor, he should be allowed at least 
thirty days to appear at the local office and make his filing. Second, I think that 
when a person has lost his right through some technical point, and can make it appear 
beyond a reasonable doubt that he has not disposed of it either directly or indirectly 
for a valuable consideration or favor, that his right should be restored, as it seems to 
me that he has had no actual benefit unless he has perfected an entry, neither has the 
government been deprived of any of its public domain. 

7. The soil is of a light, sandy loam, very durable, and I have known parcels that 
have been under cultivation for eighteen years without rest that are apparently as strong 
and fertile as at first. The remaining government lands of this county consist almost 
wholly of upland prairie and pasturage. 

8. By general rule. 

9. Have no practical knowledge of surveying. 

10. Have no suggestions to make. 

AGRICULTURE. 

1. The climate is good rain-fall rather light. The winters are mild, with the ex- 
ception of an occasional snow-storm. Seeding generally commences in March, and corn- 
planting in the last of April and first of May. Snow-falls are generally light, and stay 
out a few days. Rain-fall is rather scarce in the month of July, when wheat is in the 
dough. No irrigation ever been tried in this locality. ' 

2. The rainfall is generally in the months of April, May and June, September and 
October, plenty in the fore part of the year ; not sufficient in Julv and August. 

3. All of it. 

4. Have no irrigation. 

5. None. 

6. No knowledge of the form of irrigation. 

7. Rather poor, I should judge. 

8. None. 

9. None. 

10. None. 

11. None. 

12. Very small, not to exceed one-tenth. 

13. Think there is no need of distinction here. 

14. Not at present. 

15. About four acres. Good. 

16. Twenty-five head. 

17. Six and one-tenth. 

18. Increased rapidly — in past twelve years. 

19. No. No. 

20. No. 

21. Creeks in some localities, but generally woods. 

22. Know nothing about sheep. 

23. Have no knowledge. 

24. They do in some localities here. 

25. None that I have heard of. 

26. Cattle, 3,044 ; sheep, 492 ; this is exact, taken from the official return of the as- 
sessor. 

27. None. 

28. Yes, considerable. The surveys are not marked distinctly, and great en*ors ap- 
pear in the tracts as to quarters ; for instance, I refer to the survey of Bon Homme 
Island, situated in township 93, range 58. Where there is a strip 77 rods wide, about 
two miles long in excess of what there should be, and the parties owning on both 
sides are now in vexed litigation as to who is the owner. 



PUBLIC LANDS. 591 



As to this clause, my views I will give you in general. I should judge that, compared 
with other localities, this county is very well timbered, and an immense amount is be- 
ing planted out, most of which is cottonwood, and appears to be best adapted to soil 
and climate, and. high winds that prevail. As to questions 7, 8, and 9, 1 would place 
the matter in the hands of the local land officers, with instructions to protect the 
timber, and at all hazard prevent this unlawful cutting and appropriating gov 
ernment timber. 

Asto mines, I have nothing to say, and respectfully submit my ideas for your con- 
sideration. 
Yours, 

CHARLES T. McCOY. 



Testimony of F. W. Pettigrew, of Flandreau, Moody County, Dakota. 

The questions to which the following answers are given will be found by unfolding 
page opposite page 1 : 

1. F. W. Pettigrew, Flandreau, Moody County, Dakota ; real estate dealer. 

2. Seven and one-half years, eight and one-half in the Territory. 

3. I have acquired title to public land under the pre-emption and homestead laws. 
Am now cultivating 40 acres of timber under the timber- culture acts of Congress. 

4. Ever since I have been in the Territory I have been constantly engaged in locat- 
ing settlers and aiding others to acquire public lands. 

5. In an uncontested case a party cannot acquire title to public lands for less than 
$500, and generally it costs more in a contested case. It adds at least $100 to the ex- 
pense. 

6. The department at Washington is too long a time in deciding cases of contest, 
much to the inconvenience of settlers. The system of making proof to sustain an en- 
try is no better than the old way and ought to be abolished ; it does not prevent fraud 
on the government, but costs the settler too much money to prove his title. 

7. All the land in this county is agricultural and pastoral, no mineral or timber. 

8. By geographical divisions. 

9. The system of the survey of agricultural land is all right if it were properly car- 
ried out, but as contracts are now let the surveying is poorly done. The deputy sur- 
veyor should have the whole contract price for surveying and not be required to divide 
with the surveyor-general. The contract for township and subdivision section lines 
should be let to the same deputy and then his work should be thoroughly examined 
by a competent person. I have never known a case where the work of a deputy was 
properly examined and consequently the surveying throughout this country is wretch- 
edly done. 

10. The system is good if properly carried out. 

AGRICULTURE. 

1. The climate is adapted to the raising of all kinds of small grain, early corn, &c. 
The rainfall is more uniform as the country settles. The seasons are usually long 
enough to mature crops of all kinds. Snowfall in winter is usually light. 

2. April, May, June, September, and October ; largest amount in June and Septem- 
ber. Yes. 

3. AIL 

4. Artificial irrigation not practical. 

5. None. 

6. None. 

7. Not necessary. 

8. Irrigation is beneficial to gardens ; crops can be raised anywhere but do the best 
on level land. 

9 to 15. Not applicable to this country. 

15. One acre for summer and 3 tons hay for winter. 

16. Ten. 

18. Increased. 

19. No. 

20. Does not apply to this section. • 

21. Good wells. 

22. Ten. 

23. Not enough sheep raised to make a test. 

24. Yes. 

25. Does not apply here. 



592 PUBLIC LANDS. 

26. Cattle 3,000; sheep 160r 

27. None. 

28. Yes, most assuredly ; and those that can be found do not correspond with the 
field notes. 

TIMBER. 

1. None. 

2. Cottonwood, maple, and ash grows thrifty. Cottonwood the best grower, from 
2 to 7 feet per year. 

3. Am not posted. 

4. The remainder of these questions on timber I am unable to give any answers, 
as this is a prairie country and I am not conversant with the timber districts. 

The questions on lode and placer claims I am not acquainted with, as this is is not 
a mining district, being purely agricultural. 

These answers to the questions herewith are respectfully submitted by 

F. W. PETTIGREW, 
Cleric of the District Court, County and United States Deputy Surveyor, 

and Dealer in Real Estate. 



Testimony of Thomas S. Sharp, farmer, Olivet, Hutchinson County, Dakota. 

The questions to which the following answers are given will be found by unfolding 
page opposite page 1 : 
Tb the Public Land Commissioner, Washington, D. C. : 

Have lived in the Territory twenty months ; a farmer, and have acquired a home- 
stead under the homestead laws. Have closely watched the workings of these laws and 
the results to the settlers. 

The time of obtaining a title is about eighteen months, in uncontested cases. 

There are grave defects in the working of these land laws. 

1. There has been much land passed to speculators and others through means of pre- 
emption and homesteading, under cover of actual settlement by those who took the 
land. 

2. There is and has been much taking of land without actual residence thereon or 
in the community by the holders of the same . 

3. The late amendment of the "timber culture" laws opened up the chances to non- 
residents, so that in three months after said amendments no timber-claims remained 
untaken for miles in advance of settlement. These claims are worked largely by 
agents. 

The remedy, I think, would be to restrict the benefits of "timber claims" to home- 
steaders and pre-emptors. 

Our country hereabouts is decidedly of the grain and corn class, though grazing is 
very successful. The land may be described as prairie, with very scanty and inferior 
timber on the James River, and -is either bottom (alluvial) or table land, of generally 
level appearance and uniformity of soil. 

Limit the amount of public land that one holder can possess to 160 acres and we 
should be better off. The real feeling of every one is to own all he can and make his 
pile out of it in the future, 

The climate is fine and dry; rainfall inadequate, though usually sufficient to make 
good crops; the summer longer than in Illinois or Wisconsin, where I lived, and the 
actual and practical temperature higher than the weather records indicate, for our 
summers are more cloudless and night temperature higher than East. 

The rainfall commences last of April and closes in September ; June the rainiest 
month. 

Our native timber would not equal the amount of 100 acres of good eastern forest ; 
that is, all in our county. 

The usual timber planted is cotton wood, the most rapid and hardy we have. Other 
kinds do very well. I am trying the locust, basswood, hickory. Our plantations are 
all under seven years of age. 

The timber question will greatly affect our future welfare. The present laws are a 
wholesale damage to the region, and are not faithfully complied with ; at least, in a 
majority of cases under my observation. 

Absenteeism is another great evil, and in mauy neighborhoods renders the establish- 
ment of schools, &c, impossible, thus wronging the bona fide settler. 

The land officers recognize the fact that much perjury is committed, which they say 
they are helpless to prevent. The officer at Yankton told me eighteen "months since 
that a family of Russians took a number of sections (I forget how many), and that 
some who swore they were twenty-one he should have supposed were sixteen years of 
age. 

Respectfully, 

T. S. SHARP. 






PUBLIC LANDS. 593 

Testimony of F. Simpson, notary public, Kingsbury Comity, Dakota. 

The questions to which the following answers are given will be found by unfolding 
page opposite page 1 : 

1. F. Simpson, notary public, Kingsbury County, Dakota. 

2. In county six months ; in Territory eighteen months. 

3. A pre-emption ; shall make it a homestead. 

4. Have been a locating agent all the time since I came to the Territory. 

6. I think that 80 acres of timber claim should be given to actual settlers in same 
section beside the quarter section. 

7. Land is rolling and smooth, mostly with a clay and lime subsoil, suitable for the 
best agricultural lands. 

8. Can't say. 

9. I think the present system the best ever can be or that has been, having an ex- 
perience of fifteen years running lines. 

10. None to make ; only that I think one-*half of each section should, be timber claim, 
and for actual settlers. 

AGRICULTURE. 

1. Climate excellent ; rainfall sufficient ; usually five months without frost ; but 
little snow : and no water for irrigation. 

2. In the spring and first of summer, when most wanted. 

3. All of it. 

4. None of it. 

5. None. 

6. Can't say. 

7. No supply. 

8. Crops can be raised all over this county. 

11. None. 

12. All tillable. 

14. No. 

15. Two acres ; the best I ever knew. 

16. Can't say. 

17. This county has only been settled this season. 

18. Increased slightly. 

19. No. Yes. 

20. I think not. 

21. Wells and some lakes and marshes. 

22. I think ten is called equal. 

24. Yes. 

25. None here at present. 

26. Corners are well marked. 



Testimony of Karl Winter, farmer and county treasurer, of Olivet, Hutchinson County, 

Dakota. 

The questions to which the following answers are given will be found by unfolding 
page opposite page 1 : 

Olivet, Hutchinson County, Dak., 

December 31, 1879. 

1. Karl Winter. Farmer ; treasurer of county. 

2. Five years. 

3. Homestead, under the act of Congress approved May 20, 1862. 

4. Have had much experience in locating colony of Germans from Black Sea coun- 
try in this and adjoining counties. 

5. In uncontested claims, after making final entry, from four months to eighteen 
months have elapsed before patent is delivered at the local land office. The reason 
given, usually, for this delay, is "that they are behind their work at the department." 
The time between filing and offering final proof is regulated by law, and, of course, is 
as the law-makers designed it to be. In contested claims the duration of the contest 
is varied, owing to the time necessarily required for parties to produce the evidence, 
as well as to press of business in local land office. The expense cannot be stated. In 
uncontested claims the law regulates the fees and price of land. As to the party's 
"working" expenses while acquiring the land, they are as varied as to amounts as the 
amount of capital invested. Hundreds go upon their homesteads with nothing, and 
come out at the end of five years with a good home. How they get along in the mat- 

38 L c 



594 PUBLIC LANDS. 

ter of expenses during those years is a question that cannot well be answered, but 
they do it. Many others go upon their lands with some property and ready money 
enough to start well ; but they come out at the end of five years with less than those 
who started with nothing. Pluck and business tact seem to be sufficient for any 
emergency, while a lack of these elements will soon make a rich man poor. From my 
varied personal knowledge, and from knowledge acquired from extensive intercourse 
with others, I am impelled to the above conclusion as to the " expense of acquiring 
public lands." 

6. The public land laws are undoubtedly systematic and good. Their practical ope- 
rations are not always equable; for instance: John Doe filed upon a homestead in 
January, 1874. His wife being very ill, it became a necessity for him to take her to 
friends and remain with her there for two years. He returns and finds his homestead 
jumped, and under the rulings of the land office he is not allowed to file a homestead 
a second time, and loses his right in consequence. The remedy for this evil should be 
set out in the law and not left to the discretion of land officers. In this case John Doe 
is not a lawyer, but an ignorant man, and did not know what steps to take, if any 
were necessary, to retain his homestead claim. Richard Roe did not do precisely the 
same as John Doe, but lost his pre-emption by a similar force of circumstances. 

7. The lands of Hutchinson and adjoining counties are strictly prairie. They are 
destitute of natural timber and are all agricultural and pastoral. 

8. The character of these lands is very uniform, and cannot be excelled for agricult- 
ural and pastoral uses. 

9. The system adopted by the government could not well be improved upon. 

10. It would be difficult to devise a better plan than the one employed at present. 

AGRICULTURE. 

1. Climate dry and healthful. Winters cold and dry. Sufficient rainfall in spring 
and summer for agricultural purposes. Average about 25 inches. But little snow in 
winter, the winds drifting it generally into ravines and hollows. The spring and 
summer seasons are sufficiently long to mature vegetables and grain. Not many fruits 
will endure the climate. Irrigation not practicable on the uplands. The streams are 
generally too much below the surface ; but irrigation is not often desirable, and is 
never resorted to. 

2. The rainfall mostly occurs in spring-time, but there are frequent showers through 
the summer. Rain seldom falls in autumn in any quantity. None in winter. 

3. All cultivated without irrigation. 

4. Never employed. 

5. None. 

11. None. 

12. None. 

13. See former queries and answers. 

14. Not an acre should be sold at private entry. 

15. Two acres. The grass is excellent. 

17. Principally agricultural. 

18. Increased. 

19. Territorial herd law regulates stock-ranging. 

20 and 21. Water supply from springs, creeks, and rivers. 
25 and 26. Cannot tell. 

27. None. 

28. Posts all burned down years ago. 

TIMBER. 

1. None. Originally there was a.little growing along the Dakota River, but it has 
nearly disappeared. 

2. Cottonwood, ash, walnut, maple, and willow. Cottonwood is unquestionably the 
best. Some of the cottonwood has grown six or seven years, and presents a very en- 
couraging appearance. 

3. The timber lands should not be disposed of at public sale, and only in small tracts, 
not larger than 160 acres to the person. To lease them would be only to give the 
lessees the power to rob the lands of their timber under a license. Saw-mills now cut- 
ting timber on government lands under the present pretense of paying for the " stump- 
age" is nothingness than an outrageous system of despoiling and swindling. They 
rob the lands of the good timber, and leave it in a condition that is uninviting to 
actual settlers. Saw-mill owners should buy the trees of actual settlers. This would 
give the settlers a new business enterprise and help them to secure a livelihood while 
making they new homes. 

4. See No. 3. 



PUBLIC LANDS. 595 

5. I am very familiar with tlie growth of timber and its destruction from the Mis- 
souri to the Pacific. In rare instances a second growth comes, but not generally 
anywhere, for all over the West herds of cattle and sheep prevent the second growth, 
from coming. In general, when the timber gets thin enough so that grass and under- 
growth starts, it becomes very inviting ground for stockmen to range their stock upon, 
and the growth is ruined. 

6. Cease granting the lazy, impudent, careless, and evil-hearted Indians the liberty 
of roaming at will all over the forests and prairies of the West and building their 
camp-fires along their trails, and the forest fires will be at an end. 

7. The whole system is a system of destruction and robbery. No one should be al- 
lowed to cut the timber that does not belong to him. 

8. The idea is outrageous. There should be no local customs of despoiling the tim- 
ber lands of the government. 

9. Either the land officers or United States marshal should have explicit orders to 
prosecute every violation. 

Not acquainted with mining. 

KARL WINTER. 



Testimony of J. M. Howe, register land office, Lewiston, Idaho. 

The questions to which the following answers are given will be found by unfolding 
page opposite page 1 : 

1. J. M. Howe, Lewiston, Idaho, register of land office. 

2. Eleven years. 

3. One hundred and sixty acres under the pre-emption law. 

4. Have been register nearly three years. 

1. Richard J. Monroe, Lewiston, Idaho, receiver of United States land office. 

2. Fifteen and a half years. 

3. I have not. 

4. Have been receiver nearly nine years. 

5. Time, from date of proof; uncontested claim, from twelve to twenty months; 
contested claim, from three to years. 

6. Yes. The pre-emption law for failure to define the character of residence ; failure 
to make forfeiture of rights positive, upon non-compliance with the law ; the home- 
stead law ; for failure to provide for the benefit of residence prior to date of entry j 
for failure to make the heirs the beneficiaries in case of the marriage of the widow ; 
for failure to provide for a preference right in the contestant against an abandoned 
entry ; and for allowing more than six months in which to make proof after expiration 
of five years' residence. 

7. High rolling prairies, interspersed with deep and abrupt canons, and bordered on 
one or more sides with timbered mountains ; the prairies are fertile agricultural lands ; 
the mountains densely covered with pine timber ; the gulches, canons, and streams 
abound in gold ; the declivities afford excellent grazing. 

8. First. — Withdraw all mineral, coal, and timbered lands from the operation of 
the pre-emption and homestead laws. 

Second. — Provide for the complete survey of all lands at once, or at an early period. 

Third. — Have four classes, viz : Agricultural, mineral, such as gold and silver ; coal 
and valuable stone, such as lime; and timbered, without regard to humidity of cli- 
mate, irrigability, or other physical characteristics. 

Fourth. — The exact character of lands to be established by well-adduced testimony, 
as a matter of fact. The general assumed character to be returned as now by the sur- 
veyor-general, so as to put the matter upon inquiry. 

9. The survey should be continually extended over all classes of lands in regular 
order. Surveyors, under the immediate supervision of the department, should be kept 
in field ; the contract system should be abolished, for the reason that the easiest places 
are selected by the contractors, regardless of the value of lands, and arid plains are 
surveyed to the exclusion of fertile hills and valleys. 

The complete extension of surveys is demanded by the rapidity with which immi- 
gration is at this time being carried on throughout the United States ; the agricultural 
lands are fast being absorbed, and the timbered lands are needed for the development 
of the country; proposed railroad, some in process of completion, will form a net- 
work throughout the whole country, making available the remotest lands. 

10. Allow to each person, qualified as a pre-emptor, 160 acres of agricultural land, 
to be secured under either the pre-emption or homestead law, whichever he may elect, 
but not allow both rights. This I should maintain is the intendment of the laws as 
they now exist, but construed differently. The timber-culture law might well stand 
it is at best a costly process of acquisition. 



596 PUBLIC LANDS. 

AGRICULTURE. 

1. Speaking for this land district, I may say that the climate is variable regarding 
temperature, the valleys along streams are much warmer than the high prairies, 
and the rainfall and snowfall are less in the former than in the latter. Generally the 
length of seasons is : summers, comparatively, from March, seed-time to harvest, 
September and October ; winters, frost and snow, December 1 to February 15. The 
rainfall has largely increased within the last four or five years, caused undoubtedly by 
the increased amount of cultivation. The water supply cannot be made available for 
irrigation, as it runs in deep valleys and canons . 

2. The rainfall occurs generally from October to March, occasionally commencing 
earlier and continuing later, thoroughly saturating the ground. Little or no rain falls 
after April until about October, when most needed, but all grain crops mature upon 
the moisture held in the soil. 

3. All the agricultural lands can profitably be cultivated without irrigation. 

4. Only small portions along streams. 

5. All grain crops and most vegetables. 

6. No experiments have been tried. 

7. Rivers and small streams. 

8. No accurate knowledge ; know of one farm of 200 acres irrigated for the purpose 
of raising timothy hay, the process having been carried on for 10 years without per- 
ceptible injury ; grain crops can be raised at altitudes of 3,000 and 4,000 feet. 

9. The system of irrigation is not generally practiced, only isolated, cases, therefore 
cannot give data ; there are no restrictions placed on the use or waste of water. 

10. No water taken up. 

11. None. 

12. One-twentieth part. 

13. Pasturage lands should be classed among agricultural, and as such, subject to 
pre-emption and homestead under the generallaw, ultimately to be proclaimed for sale ; 
should not deem it practicable to establish pastoral homesteads. 

14. It would, doubtless, be advisable for the government to put these lands in the 
market, upon recommendation of the local officers, first holding public sale, at a mini- 
mum of $1.25 per acre ; and the quantity should be restricted to each purchaser, in not 
more than 80 acres. 

15. There are no statistics. I should judge from five to seven acres per head. I as- 
sert this to be the finest grazing country in the United States. 

16. The product of ten good cows. 

17. From five to ten. 

18. Diminished. 

19. No ; cattle should be provided with feed in winter ; they are, however, kept on 
ranges, though attended with some loss in severe winters, say about one out of three ' T 
they could be controlled by fences. 

20. They would. 

21. Mostly springs, frequently rivers and small streams. 

22. Not more than three would equal one beef. 

23. Diminished ; they are very destructive to grass, grazing so close. 

24. Yes, if forced to, but cattle dislike to follow sheep ; it is bad economy. 

25. The different interests are decidedly antagonistic, and laws have been passed re- 
stricting sheep-grazing within prescribed distances of occupied lands by settlers, but 
are looked upon as unconstitutional and remain obsolete. 

26. Sheep, 20,000, and 5,000 cattle ; sheep in herds of 1,000 to 2,000, cattle at pleasure,, 
are not herded. 

27. No further suggestions. 

28. Serious difficulty ; corners have nearly all been obliterated. I judge they were 
imperfectly set originally, being forthe most part indicated by stakes driven in mounds, 
which have rotted away and otherwise been destroyed. I would suggest that they 
be relocated, so far as to place substantial monuments upon township corners and lines 
at least once in two miles. 

TIMBER. 

1. The mountains bordering the prairie country and extending almost interminably 
northward are covered quite densely with fine timber, mostly pine, fir, cedar, and tam- 
arack. We might say one-half the land in this section of Idaho is timbered. 

2. Cottonwood, poplar, locust, box-elder, and some nut trees ; the latter are regarded 
as the best for timber, but are harder to cultivate ; the poplar family is the easiest and 
surest raised, reaching one foot in diameter in six or seven years ; the hard woods and 
nut trees would require twenty years to become serviceable. 

3. Should hold the timbered" lands from sale : should fix a stumpage value upon the 
timber, a price for wood ; appoint a special agent for each district to collect the rev- 



PUBLIC LANDS. 597 

enue and to prosecute depredators. A very large revenue could be derived from this 
source, and it would work no greater hardship upon settlers to pay the rates in this 
manner, for the price of timber, whether bought from manufacturers who own the tim- 
ber, buying the lands, or who buy it from government, paying stumpage, would be 
about the same ; in fact, it comes out of the consumer anyway. By this method of sell- 
ing the timber the lands would become cleared and are then valuable for agriculture 
or mining, and might be sold as such. Should laws be enacted for the sale of timbered 
lands, I should recommend that not more than 40 acres be allowed to each person and 
he to be an actual dona-fide resident within the land district comprising the land ; 20 
acres would be enough. The price of timbered lauds should not be less than $2.50 per 
acre. 

4. I should not classify the kinds, price, nor size of tracts. 

5. There is to some extent a second growth, of no considerable value however, being 
mostly brush-wood. 

6. Forest fires are occasioned mostly by carelessness of lumbermen, travelers, and 
Indians; they rage nearly every year during the dry period; are more destructive 
than all the depredators combined ; the mode of prevention is by stringent Federal 
laws, to be enforced by a prosecutor in the person of the special agent before men- 
tioned, who could make personal investigation and inflict speedy punishment. 

7. The depredations upon public timber are extensive, being for railroad ties and tim- 
ber, mineral, building, agricultural , and other domestic purposes. There is much un- 
necessary waste, especially trees that are suitable for shingles and shakes, the butts 
being used while the tops are left to waste. 

8. Property in public timber, according to local customs, is conceded to be in the party 
reducing the timber to his possession. 

9. They would not be, for the reason that they could not be so efficiently executed by 
the United States district land officers as they would by a special agent, a sort of 
plenipotentiary whose sole business should be the execution of the timber laws; from 
personal experience I can say that local officers cannot, even with full powers, attend 
to the business properly, and subagents under them are not satisfactory. 

LODE CLAIMS. 

1. I have had no experience. 

2. From observation I should say that the defects are but few, if anj 

3. Have no data. 

4. Have no knowledge. 

5. Have no knowledge. 

6. I presume there has. 

7. I have not. 

8. 9, 10, 11, 12, 13, 14, 15, 16, 17, and 18 I cannot answer, as I have had no experience. 

19. All district laws, customs, and records should be abolished and the initiation of 
record title be placed exclusively with United States land officers. 

20. The adjustment of mining controversies should be left absolutely to the United 
States land officers in the same manner as contests under other land laws. 

21. From observation I should consider it desirable to retain the leading features of 
the existing mining laws ; I could not speak further. 

22. Locators should be compelled on penalty of forfeiture to acquire title by pur- 
chase within a reasonable time, say one year. 

PLACER CLAIMS. 

1. One-twentieth, principally gold. 

2. I am not. 

3. 4, 5, 6, 7, 8 and 9 I cannot answer for want of practical knowledge. 
Very respectfully submitted. 

J.M.HOWE, 
Begister, Lewiston, Idaho. 

RICHARD J. MONROE, 

Receiver. 



Testimony of E. 3. Bonnelle, chief cleric to the surveyor-general of Montana, Helena, MonU, 
relative to rectangular surveys, monuments, and inspection by surveyor-general. 

E. B. Bonnelle, chief clerk in the office of the surveyor-general of Montana, testi- 
fied at Helena, September 27, 1879, as follows : 
I think that the rectangular system, so far as it goes, is a very good one. I think 



598 PUBLIC LANDS. 

there is some room for improvement in its details. For instance, the monuments might 
be of a more permanent nature. I think there ought to be an inspection of these 
surveys, and I think there should be an inspection of mineral surveys as well as of 
agricultural surveys. The surveyor-general could do that if a sufficient amount were 
allowed to defray his expenses. 



Testimony of Edwin H. Combs, farmer and stock-raiser, Madison County, Montana. 

The questions to which the following answers are given will be found by unfolding 
page opposite page 1 : 

1. Edwin H. Combs, Madison County, Montana; occupation, farming and raising 
stock. 

2. Since June 17, 1863. 

3. I have, under the homestead and pre-emption laws. 

6. I think the present laws good enough when administered by just officers. 

7. I have seen the greater part of the Territory, and think an average of two-thirds 
of the entire country is grazing, the balance timber, mineral, and agricultural. 

8. The present laws are good, and any change would interfere with the already-ac- 
quired titles of those who have made this country what it is. 

9. The land law, as it is, prevents to a great extent monopolies, and any change, I 
fear, would not make it any better. 

10. In my opinion the present method works well for the interest of government 
and the poor man, and gives general satisfaction. 

AGRICULTURE. 

1. The climate is dry and healthy. Eainfall very light. The snow principally falls 
on the mountain tops, and consequently the streams are very high during the irrigat- 
ing season. 

2. The rainfall is mostly in June and July. Sometimes heavy snows fall in the 
valleys in May, but are warm, going off rapidly, without freezing nights. 

3. Not any. 

4. About one to ten. 

5. Wheat, oats, barley, and nearly all the vegetables grown in the Middle States. 

6. About 500 square inches. 

7. From the creeks and rivers the supply is good. Montana is the best watered 
country in the world. 

8. I think irrigation agrees with this alkaline soil. The altitude has not much to 
do with the season. Some of the large lower valleys are more subject to frost than 
those high up in the narrow valleys at an altitude of from 4,000 to 5,000 feet. 

9. All the water is exhausted. The law forbids any waste. It is a mistaken idea to 
irrigate and return the water to the stream from whence it came. A field of 200 acres 
will absorb 1,000 inches for three months, or during the growth of the crop. 

10. The waters of small streams is mostly claimed and used, but the one-thousandth 
part of large streams is not used. Each farmer is allowed the full capacity of his 
ditch, commencing with the first settler, until the stream is exhausted. 

12. About two-thirds. 

13. It is not. 

14. It is not. 

15. Other sections are better adapted to grazing. 

18. It is fully as good as it was sixteen years ago. 

19. Some of them fence in large tracts for winter pasture. 

20. I think not. 

21. From springs, brooks, and rivers, promiscuously and plentifully. 

23. It has increased — become thicker. 

24. They will. 

25. Hostile feelings prevail wherever there are sheep. 

28. There is none bat a surveyor can understand the hieroglyphics on the buried 
stone, and the surveyor who established these corners resides in the Territorial prison. 

TIMBER. 

1. Timber is plenty, but very poor quality. 

2. Cottonwood. 

3. I oppose any disposition or restrictions whatever of timber lands. With but few 
exceptions the farmers go from 10 to 15 miles for timber, and climb the rocky sides of 



PUBLIC LANDS 599 

the perpendicular mountains, consuming an entire day, for an inferior load. The main 
body of timber lies far up in the mountains, and government ought to pension the 
men who get it down. 

5. With a few exceptions there is none. Groves of young Norway pine cut for fenc- 
ing have grown again. 

b\ Fires occur from careless men camping out, hunting and prospecting. The law or 
punishment is both fine and imprisonment. 

9. I think not. It would be impracticable. 

PLACER CLAIMS. 

5. They are defective. The present law allows it to be taken and pre-empted in 
large tracts, thereby securing a title from government. Consequently it is monopo- 
lized and held by capitalists to the detriment of the entire country. 



Testimony of Uriah Bruner, attorney at Law, West Point, Nebr. 

The questions to which the following answers are given will be found by unfolding 
page opposite page 1 : 

5. On uncontested entries. Homesteads, including witnesses and their expenses, 
about $40, average. Some few made their entries, say for $25, while others, living 
at a great distance from office, their expenses have run up to $75. Timber claim, 
including proof, exclusive of the improvements that have to be made on the land, 
would be about the same as in homesteads. Fees in pre-emption entries is consider- 
ably less. Since I am out of the office I understand that the applicant to homestead 
and timber claims is required to give thirty days' notice by publication of his inten- 
tion to make final proof. This is a useless and burdensome expense, which should be 
done away with. No one but the proprietor of the newspaper will be benefited by 
such notice. Contested claims are frequently very expensive to the contesting par- 
ties. The average expense of a contest is perhaps $40. Where no attorneys are em- 
ployed acd personal notice is given, the expense is sometimes reduced to about $15, 
but more frequently it will cost $100. 

6. The timber law as it stands has several defects, in my opinion. It requires that 
2,700 trees should be planted to each acre, and 675 shall be growing and be thrifty at 
the time of proving up (five and six years after same are set out). There should no 
more trees be required to be planted than there are required to be living and in thrifty 
condition at end of the eight years. No trees that are fit for forest planting will do 
well to be planted so close together. They will choke out one another, and' while the 
fittest, thriftiest, and most vigorous will survive, it will yet be injured by those that 
have been killed out by the choking process. Trees in forest grow straight, with 
long bodies, but they are much retarded in their growth by being overcrowded. It is 
far better to plant the proper distance, so they won't interfere with the growth of 
each other by overcrowding, until they attain a sufficient size for purposes of poles 
and fire-wood, when the thinning-out process can be done by the farmer with profit to 
the forest as well as to himself. I have considerable experience in raising forest trees 
in planted groves, and my views I give here are from actual observation and practical 
experience. I believe that the claimant under the timber law should b e required to 
plant 40 acres for every 160, and the number of trees required to be plant ed to the acre 
should be about 640, and the number at time of proving up to be about 500. That 
all homesteads and pre-emptors on prairie lands should be required to plant and have 
in growing and thrifty condition 10 acres for every 160, five years after the entry of 
the same, and before the passing of said entries for patenting — in homesteads the 
proof to be made at the time of final proof, and in pre-emptions and commutations the 
proof to be made five years after the date of settlements. 

There are vast areas of lands in Western Nebraska and Kansas that are worthless 
for all purposes except for grazing. These, under proper restrictions, could be sold 
on condition that part of the same be planted in forest trees. Here care should be 
taken that the same be not sold in too large bodies to one person or company of per- 
sons. Rather have the government inaugurate a system of leasing (as they used to 
have in Australia) at public auction for a term not to exceed five years at a time. 
Great care will have to be used or large cattle-raisers will soon have a monopoly of 
all desirable grazing lands. In this land district (Norfolk ) the lands are what is called 
prairie, with very little timber here and there on the edges of the water-courtes and 
running streams. Most of the lands are good, rich, farming (agricultural) lands. 
There are yet large bodies of bad, sandy lands, nearly worthless at present except lor 
grazing purposes. 



600 PUBLIC LANDS. 

13. I think that homestead, timber law, and pre-emption law should be left in 
force even in exclusively pastoral lands, until it is definitely determined that no homes 
will be made or farms opened any more. Cattle monopolists will undoubtedly clamor 
for an abrogation of the land laws on the plains. But we should proceed very cau- 
tiously in this direction. We should remember that this is the day for aggression by 
large monopolists of all kinds. Our government was established not with a view for 
enriching a few at the expense of the masses, but rather for the purpose of affording 
opportunities to the toiling millions to rise with the dignity of labor to a comfortable 
competence for himself and his family. It is the government's duty to see to it that 
all shall be brought up well, be educated in the rudiments of a good common-school 
education, and that this bringing up may be done by the paterfamilias without ma- 
terially cramping himself. The question of social science is undoubtedly the most 
important that can engage the attention of statesmen, and the land question entering 
so largely into this question, is, perhaps, the most difficult to solve. " To move with 
great caution " must be our motto. 

2. Time of growth, from May to September. 
Very respectfully, 

URIAH BRUNER. 



Testimony of B. H. Criswell, notary public, Indianola, Nebr. 

The questions to which the following answers are given will be found by unfolding 
page opposite page 1 : 

Indianola, Nebr., January 24, 1880. 
Public Land Commission, Department of the Interior : 

Gentlemen : — I laid away this paper in my drawer and forgot it, which is rather a 
bad apology, but it is true. I answer interrogatories seriatim. 

1. Robert H. Criswell, Indianola, Red Willow County, Nebraska ; lawyer. 

2. Nearly seven years ; I have perfected a homestead and am holding a pre-emption. 

4. I have been doing land law business during the entire period of my residence 
here. 

5. I had three years' credit as a soldier, and my homestead cost me $700, but I paid 
for my house and hired all my work ; took about 40 acres and put in three crops. I have 
known men have nothing, not even enough to file on land, but get on it and in four or 
five years have quite a good property, such as a team, cows, hogs, poultry, and grain 
for bread. Contested claims, generally, in this region have not been defended, and the 
cost is $15 and $20 to clear them. 

7. I am honestly of the opinion that this will be one of the best agricultural dis- 
tricts of the world, as well as one of the best fruit districts. I have seen the finest 
vegetables raised here, such as parsnips, cabbages, and beets, I ever saw. The finest 
wild plums grow here I ever saw, and plenty of wild grapes. Professor Aughey, of 
the University at Lincoln, said to me he would risk his reputation that this valley 
would be as famous as the valley of the Rhine for grapes alone. This will be a great 
fall-wheat country, and it only needs the wheat-grower to come with his plow and 
try it. I have not time to answer all your questions, but I do wish to insist that this 
is bound to be, par excellence, an agricultural country, and not a pasturage country, 
that is, a wild pasturage country, excepting, perhaps, in some few counties where the 
land is exceedingly rolling. 

10. I beg leave to suggest that you cause to be amended section 2294 of the home- 
stead law by striking out clerk of the County, and inserting any officer having a seal, 
such as county judge, notary public. As the law now stands county clerks oppress 
the homesteader by charging high fees, and the clerk here will not permit a man to 
make his own papers and be sworn and take 25 cents for the affidavit. He makes him 
pay $2 whether he makes out the papers or not. Can you not have this remedied ? 

I close by insisting that you hold these lands for the actual settler and homesteader. 
Very respectfully, 

R. H. CRISWELL. 



Testimony of Joel Hull, attorney at law and real-estate agent, Minden, Kearney County, 

Nebraska. 

The questions to which the following answers are given will be found by unfolding 
page opposite page 1 : 

Referring to your list of questions and answers numbered in accordance, I have the 
honor to submit the following : , 



PUBLIC LANDS. 601 

1. Joel Hull, Minden, Kearney County, Nebraska; attorney at law and real-estate 
cgent. 

2. Have resided in the State and county since March, 1872, nearly eight years. 

3. I have acquired a title to a quarter section under the soldiers' and sailors' home- 
stead act, and made an entry under the timber-culture act. 

4. I have for four years last past been a practicing attorney before the local land 
offices in this State, and been engaged in securing entries for settlers, prosecuting 
contests for the abandoned lands, and attending to the making final proofs of claimants. 

5. In uncontested claims my experience is — 

For entry fees (double minimum lands) $18 00 

Attorney fees for making entry papers 2 00 

Final receipts on proof 9 00 

Notice of intention to make final proof 1 00 

Publishing the same 3 00 

Taking proof of claimant and witnesses by attorney or county clerk 3 00 

Examining papers by register 1 00 

Total expense 37 00 

For contested claims, additional, from $15 to $30, under either the homestead or 
timber-culture laws. 

6. In the relinquishment of timber- culture entries, the purchaser of the rights and 
improvements now sends to the land office his application for the tract, accompanied 
with the entry fees, his affidavit, and the relinquishment of the former occupant, which 
secured for him a prior right to the land. I would suggest the same rules and laws to 
be made applicable to homestead entries. By the present rules a purchaser of the im- 
provements has no rights to the land, and often other parties succeed in getting places 
with valuable improvements that ought to have been secured by the purchasers of such 
improvements. "The first legal applicant" now gets such land, while the purchaser 
ought to have a prior right. 

I would further suggest that the law be changed so that the affidavits to be taken, 
in making a homestead entry, can be made before the register, or receiver, or clerk of 
the county court, or other officer authorized to administer oaths, having a seal. The pres- 
ent rules designate none but the register, or receiver, or a clerk of the county court. A 
notary public or county judge are generally more competent and convenient to attend 
to the business than the county clerks. 

I would further suggest that the same rules be made applicable to the making final 
proofs on homestead and on timber- culture claims where distance from the land office 
would be the reason specified, to wit, before the county judge or a notary public, for 
the same reason as above. 

I would thus make the rules uniform in regard to pre-emptions, homestead, soldiers' 
homestead, additional homestead, and timber-culture entries, giving full power and 
authority to county judges and notaries public as well as to the county clerks to take 
applications, administer oaths, both in the affidavits required in making the entry and 
in making final proof in each of the above classes. 

7. The county of Kearney, Nebraska, is a gently undulating plain prairie, whose soil 
is a black loamy soil from one to four feet deep, generally two to three feet deep, and 
from my personal observation the greater portion of the eastern half of the State is 
similarly situated, and suitable almost exclusively for agricultural purposes. The 
southwest quarter of the State is to a great extent also suited to agricultural purposes, 
a small portion only on the extreme western end of the State being more suited for 
pastoral purposes. The northwest quarter of the State is to a greater extent more 
suited to pastoral uses. There is yet no mineral developments in this State that is 
worthy of notice. The timber is exclusively confined to narrow belts along the 
streams. 

8. It will be difficult to fix the character of these two classes of land by any geo- 
graphical line or division, for even in the extreme western portion of the State, along 
the streams the land would be properly classed agricultural lands, while adjacent to 
them would be found considerable tracts of land not at all suited for agriculture, but 
only for pastoral uses. A general rule upon actual survey is the only way the charac- 
ter of the lands can be fixed without doing violence to the several classes. This may 
"be and perhaps ought to be done by specially appointed commissioners for each State 
or Territory. 

The claimants of land for pastoral uses often come in conflict with those wishing 
the same lands for agricultural purposes, thereby causing great and serious difficulties, 
disputes, and sometimes loss of life, and which can only be remedied by the classifica- 
tion by such rules and authority as will leave no grounds for such contests. 

9. I am not a practical surveyor, but I think the present plan of parceling land is the 
best, most convenient, and economical for the agriculturist that can be adopted for 
that class of land suited for agriculture. 



602 PUBLIC LANDS. 

For the lands suited only for pastoral purposes I would suggest the parceling larger 
tracts of not exceeding four square miles to each owner and herder of cattle, not ex- 
ceeding two acres to each beef animal occupying his tract claimed, and under suita- 
ble rules and restrictions. 

The monopoly of large tracts by few men should be guarded against, and as the cli- 
mate and amount of rainfall, as well as the character of wild grasses, seem to be un- 
dergoing a change continuously, more suited for agriculture here in the central por- 
tion of Nebraska, and west, it seems to me to be very unwise to finally dispose of these 
larger tracts until after several years has elapsed and the above-mentioned commis- 
sioners have reported several times the actual condition of several classes, and the 
probability of the lands in whole or in part becoming agricultural lands. 

10. I cannot recommend any better system of parceling the lands or disposing of 
them to the actual settlers than the present existing land system. The agriculturist 
is, so far as I can learn, universally pleased with the present system. The conveniences of 
making application for the tracts, the making the rules uniform for the several kinds 
of entries, and the convenience also of making proof, guarding only against fraudulent 
practices I Lave already referred to. The cattle men are not so anxious to own in fee 
simple the ranges they can occupy as to be guarded in their occupancy pro tempore. 

My suggestion would then be after the certain tracts had been once classified as 
pastoral lands, to enter under a leasing system for a term of years to men whose sole 
condition will be continued occupancy with cattle, upon the payment of a email entry 
fee, at the local land offices. Let that term be five years with priority rights to 
another five-year term. After the above special land commissioners have resurveyed, 
re-examined, and reclassified the lands, and reported the same to the General Land 
Department. It may require several of these terms to finally settle the character of 
most of the lands lying i u the States of Kansas and Nebraska, and west of the one 
hundredth meridian. 

AGRICULTURE. 

1. Climate in the south half of the State suitable for all the staple cereals, includ- 
ing winter and spring varieties of wheat ; nearly all the desirable varieties of corn. 
Potatoes and all root crops do well. Rainfall is all we can depend on, irrigation 
being impracticable on the great bulk of the lands. The rain has heretofore usually 
been sufficient for securing fair crops of all kinds, and averaging about thirty-two 
inches during the year. 

2. The season of the greatest rainfall occurs during the months of April, May, June, 
and July usually, some years a little earlier, others a little later, and invariably has, for 
the last eight years, come at the season when most needed for agriculture. 

3. All of this section of the State may be cultvated without any irrigation. The 
soil of the State being of such a formation that the moisture from rains on cultivated 
lands is readily absorbed and retained to such a degree that droughts of from three to 
four weeks seldom affect the crops deleteriously. 

4. Very little. Not one-hundredth part can be irrigated from the superficial forma- 
tion, as well as the almost total want of supply of water. 

5. Therefore no crops are raised by irrigation. 

b. The lands in the central and western part of the State lie at an altitude of 2,000 
to 3,000 feet above sea- level, and the higher table-lands, or rolling prairie, seem as well 
adapted to crops ar those of lower levels or along the streams. The experience so far 
seems to indicate that the high prairies are more productive than the bottom lands 
along streams. 

12. None of the central part of this State can be said to be adapted to pastoral uses 
only. All may be cultivated fully as economically as to pasture the lands. As I be- 
fore remarked, only a small proportion in the western end of the State can be so classed, 
and not exceeding one-twentieth of the whole State. 

13. It will be extremely difficult to establish homesteads on pasturage lands; and on 
such lands as are foun.d to be adapted to agriculture, it is my opinion no permits 
should be granted to more land than the homestead settler has. Bat on such lands as 
are suitable for pasturage and not adapted to agriculture I think it would be proper 
to adopt a system of leasing for short terms — say five years — to actual settlers, no 
greater amount than four sections to one settler, who shall have at least one beef ani- 
mal to each two acres of his tract. 

14. I would not advise to put these lands in the market for private entry at present, 
but rather hold them as before suggested, in trust for such uses. It is my observation 
that each year is developing a little larger growth of grass, and the very character of 
the grasses is gradually undergoing a change, some of the smaller grasses giving way 
to larg-er, coarser grasses, and each year is demonstrating the fact that a much larger 
area of the State is adapted to agriculture than has heretofore been supposed. The 
present system is a complete check upon monopolists getting control of large tracts of 
and, which is as it should be. Such lauds, however, as are eventually demonstrated 



PUBLIC LANDS. 60& 

to be adapted only to pastoral purposes may be then properly put on the market for 
private entry under suitable limits. 

15. It is here taken to be fair to rate one beef animal, including the young, to every 
acre, but it being an agricultural section, and none making the wild lands exclusively 
their pasturage, taking up their cattle during the winter months and feeding them, it 
would not be fair to compare it with lands exclusively adapted to pasturage only. My 
impression would be that twice that amount would be necessary to each head raised 
and fitted for market on pasturage only. 

16. About 200 head of cattle would support an average family. 

17. But pastoral pursuit being engaged in by no one here exclusively, it would be 
difficult to compare the settled with the unsettled portions. Not more than four head 
to the section average in this county. 

18. The growth of the grass for the past eight years in this county on the wild or 
uncultivated land has very sensibly increased. The cause, however, I attribute to the 
check put upon prairie fires, and that no great herds of cattle nor buffalo have ranged 
on them. The character of the grasses in my observation has also undergone a change. 
In the spring of 1872 in Kearney County and adjacent counties but little else than 
"buffalo" grasses were found on the high prairies, which are now covered almost en- 
tirely with the "bunch," " blue joint," and other larger and coarser grasses. 

19. There being no ranges here, I cannot say but this— that when the homestead set- 
tlers come, the ranges are abandoned; fences, therefore, have neither been tried nor 
proven a failure. Fenced ranges may prove a success if they are not so expensive as 
to be impracticable. The method that would probably be adopted would be to have 
a suitable ;" corral " or yard to herd them in at nights or inclement weather, and 
watch them while out feeding. 

21. The supply of stock water comes principally from wells. Those adjoining the 
small streams prefer to water their stock at the streams, but only for the convenience. 
The well water is considered fully as good as the stream water. 

26. There are about 2,000 head of cattle and 200 head of sheep in Kearney County, 
but rapidly increasing with the growth of the county ; these are in herds of an average 
of about six head in each bunch. 

27. The present system is a good one and satisfactory so far. The surveys are in 
some few sections not quite clearly enough marked. The rules of entry and proof for 
the convenience and economy of the settler I have already alluded to. The corners 
are mostly found in a fair state of preservation. At some places, especially where 
sandy, it is diffiult to find them, and in a few cases have to be re-established by county 
surveyors. A little charcoal or a charred post would have saved great trouble in a few 
instances if they had been used at the survey. 

TIMBER. 

1. There is no native timber on the upland of the State. None but the bottom lands 
skirting along the streams have timber. 

2. The cottonwood, box elder, walnut, ash, the maples, and Lombardy poplar are the 
varieties mostly planted, and all are thriving and doing well. The hard woods, the 
oaks, hickory, and beech, it is thought, will succeed after the ground is shaded so that 
they w^ill not be directly effected by the drying winds. Many of the more intelligent 
of our farmers are giving considerable time and attention to the growth of timber. 
There are no native forests in the State, but from the ready growth of forest trees,„ 
observant men think it can be made to produce trees readily. 

Very respectfully, your obedient servant, 

JOEL HULL. 



Testimony of Evan T. Jay, attorney and stock-grower, Frontier County, Nebraska. 

The questions to which the following answers are given will be found by unfolding 
page opposite page 1 : 

Stowe P. O., Frontier County, Nebraska, 

November 30, 1879. 
To the Public Land Commission, Department of the Interior, Washington, D. C: 

1. Evan T. Jay, Stowe P. O., Frontier County, Nebraska, attorney and stock-grower. 

2. Nine years in this State— seven years in Buffalo County, and two years in this 
county. 

3. I lived seven years upon the southeast quarter of section 4, township 8, range 16 
west, Buffalo County, Nebraska. I received a patent from the government under a 
soldier's homestead filing. 



604 PUBLIC LANDS. 

4. Since my removal to this county I have had a limited amount of land practice 
"before notary public in land contest cases where, by stipulated agreement of both 
parties, the depositions were taken before a notary public. 

5. From my personal experience I must say that my expense incurred in improve- 
ments and cultivation of my homestead were far greater than my profits, owing to the 
fact I lost most of my crops each year. By grasshoppers, drought, or hot winds from 
the south, I lost $3,900 trying to farm ; then sold my homestead for $1,200, which was 
considerably less than my improvements cost. Had I devoted my time and attention 
to stock-raising instead of tilling the land, I might have made on the same capital, 
and during same time 1 devoted to improving my farm, eight or ten thousand dollars. 
While trying to farm I kept a small herd of cattle which brought me a handsome in- 
come. My experience has been : the cheapest mode of acquiring title toland will be 
to plow just as little of the ground as possible, reserving the remainder for pasture 
and hay. 

Contested land suits are often very expensive luxuries, owing to the amount of spite 
and revenge under which the contest was commenced. I assisted one of my neighbors 
in taking testimony before a notary public last month, which continued six days, hav- 
ing 76 pages of legal cap written full of evidence, all about a 40-acre lot which, if 
sold under good title, would not bring more than $1.25 per acre. The plaintiff in the 
case paid over $50 expenses, and has no positive assurance of getting what all agree 
to be justice to him — that is, the right to this disputed 40 acres. The cheapest contest 
— publication and other fees are about $25. 

6. In the case above stated the plaintiff, a poor man, who had lived in this county 
five years, had undergone the adversities of grasshoppers and drought, but was enabled 
to starve along, living off of the increase of a small herd of cattle, selling the steers 
and making butter from the cows. About eighteen months ago he purchased the land- 
office receipt given to one W. F. Owens, who abandoned his claim and moved to Iowa, 
leaving his homestead papers with a neighbor to sell, if possible, for the amount 
already paid at the land office. Mr. Nolan purchased the papers and proceeded accord- 
ing to law, and had the first filing canceled after receiving notice from our district 
land office at Bloomington. The above-mentioned plaintiff proceeded to the county 
clerk's office and made his homestead filing upon this disputed 40 acres, and three- 
fortieths of his first selected claim — making the exchange of 40 in order to better the 
condition of his home. His papers were sent to the land office by mail In a few 
days Mr. Nolan was notified that his neighbor had placed a soldier's filing on the 
whole of this contested 160 acres in the name of a party living in Iowa. This neigh- 
bor of Mr. Nolan's has an old grudge at Mr. Nolan, and in order to assist his revenge 
had succeeded in having this filing placed upon this land before Mr. Nolan's papers 
were received through the mail. All this resulted in the above contest, which cost Mr. 
Nolan $50 in cash, the law being such that the plaintiff, on an appeal suit, had to pay 
for the taking of all the testimony. I consider that if the laws were so amended as 
to allow the persons who, in good faith, contest some prior filing to a tract of land, 
and succeed in securing the cancellation of the same, that a sufficient time should be 
allowed that particular individual, say thirty or sixty days, to perfect his individual 
filing upon said land. The present rule being, the first application made after the 
cancellation is returned receives filing. Said rule results in most cases in innocent 
parties having to be greatly wronged, and compels them to expend their hard-earned 
money or lose their homes, which, in many cases, constitute their all. 

7. The quality of our soil is a rich yellowish loam. The quality is excellent, and 
would produce all kinds of vegetation if rainfall could be furnished at proper inter- 
vals. The altitude of this country is very high. Except on the creeks and their trib- 
utaries, a distance of from 100 to 180 feet is necessary to dig in order to get water. 
Upon the margin of our streams a small amount of timber is found — white ash, cotton- 
wood, and box elder. 

8. 9. I have not had access to the act of Congress referred to. Would be much pleased 
to have it. I do most undoubtedly believe, from nine years' experience in Western Ne- 
braska, that if our national Congress would enact a law by which all the territory in 
Nebraska west of the 100th principal meridian should be exclusively devoted to stock 
range, that a far better revenue would be derived than by trying to introduce agricul- 
ture into any portion of this territory. The citizens of this county, some five years 
ago, after having tried to prove this a farming district and failed, voted by a unani- 
mous vote to abolish the herd law; and since that time this county has gradually 
settled up with a class of small stock-raisers, who are able to own from 50 to 500 head 
of cattle. Owing to the surrounding counties having herd laws, large stock-owners 
have not crowded our small ranges. The result is that this county has good live com- 
mon schools. Our county does not owe a dollar of indebtedness, and we have a hand- 
some little fund in the hand of our treasurer, (The said office I now have the honor 
of filling), while, on the other hand, the counties surrounding us are in debt; their 
county warrants only command 60 to 75 cents on the dollar. We have a few citizens 
in this county who still fry to farm on a small scale. Their living is made by hauling 



PUBLIC LANDS. 605 

wood 30 miles to the railroad, and selling it for $4 per cord. Last season the hot wind* 
from the south and the drought together rendered their crops a failure. Many of 
them will have to be supported by our county poor fund this winter or suffer. 

This, I presume, is all out of place, and not at all what your honorable commission 
wish to hear, yet I am willing to make affidavit, and can furuish you sworn testimony, 
even from many who have tried to farm, that this above statement is correct. Yet 
under the existing land-office laws many poor men are led to come into this far west- 
ern district for the purpose of trying to make a home and a living by cultivating the 
soil. Most cases have resulted in these parties returning again to the East, preferring 
to live on rented farms and give half of their crops rather than lose all here. 

Our railroad companies have advertised their lands through these counties as being • 
very productive, and many have been induced by reading these exaggerated accounts 
in eastern papers to move west, and in most cases have been disappointed, and have 
allowed their land purchased from railroad companies to revert back again, with all 
improvements and expense, to the companies, in order to again move east to a more 
productive climate. 

I am convinced that if your honorable commission' were privileged to visit Western 
Nebraska in person, that you would all join in pronouncing my theory as to the dispo- 
sition of the greater portion of that lying west of the 100th principal meridian only 
adapted to stock raising. 

10. By dividing this section of territory into small tracts, say from one to ten sections, 
and surround it with a provision that would protect the stock-grower, and the greater 
portion of the land could be sold by the government for fair figures. As to the home- 
stead, pre-emption, and timber-culture acts, they are satisfactory, and in agricultural 
portions of the State are recognized as good, owing to the fact that speculators in real 
estate are barred out. Under the new act, allowing citizens additional 80 acres, I think 
the act should allow the location of that 80 acres wherever found, and not require the 
annexation to the first 80 ; much inconvenience is caused to those entitled to the addi- 
tional 80 acres. 

AGRICULTURE. 

1. Climate is pleasant and healthy. Rainfall, if at proper seasons, has been for the 
last two years in sufficient amount to have produced all kinds of vegetation. The 
hot winds and the drought usually set in at the time wheat and corn most need the 
rain. Early spring commences very favorably, but the season three times out of five 
results in drought and hot winds. 

3. Owing to the high altitude of this county irrigation is utterly impossible. Our 
county lays between the Platte and Republican Rivers. 

12. At least one-fourth of this county is only susceptible of agriculture, or of culti- 
vation by plowing. The remaining three-fourths is hills, canons, and rough, broken 
highland. 

13. I think the past has proven that the homesteader should fence from ten to thirty 
acres for a " truck patch," or for raising millet hay for his ponies that have to work in 
winter, and leave the remainder lay out for free range pasturage. 

14. Answered in answer 10, as I view the situation. 

Stowe, Frontier County, Nebr., December 29, 1879. 
To the Land Commission, Washington, D. C. : 

X was unexpectedly called from home, and am of the opinion that the above will be. 
coo late. 

I have written to the Department of the Interior repeatedly, in order to get the land- 
office laws and blanks necessary to be used in assisting settlers, and also for the pur- 
pose of posting myself on the laws relating to public lands. 

My dear sirs, I will remain under lasting obligations if you will send me a full outfit 
of laws and blanks, or cause the same to be sent to me. 

If you desire anything further, relative to your interrogatories, I will be pleased to 
assist. Hoping to hear from you, I submit the within. 
I am, very respectfully, 

EVAN T.JAY, 
County Treasurer, Frontier County, Nebraska. 



Testimony of D. L. Bliss, 3. M. Yerrington, S. H. Day, and Judge Beatty, at Carson City r 

Nev. 

D. L. Bliss made the following statement : 

I am a member of the Tahoe Lumber and Fluming Company, which is perhaps more 
extensively engaged in the lumber business than any other concern or person in the 



606 PUBLIC LANDS. 

State. Most of our lands are around Lake Tahoe, in the counties of Douglas and 
Ormsby, and a small portion in Washoe County, Nevada, and some in California. We 
have title to most all of it. We have adopted the practice of buying the land, cut- 
ting off the timber, and then abandoning it, in order not to have to pay taxes on the 
land. The land in Nevada was located by the State. We got parties to take it from 
the State — 320 acres each. We didn't lay in scrip in this State. All the land we got 
in this State was selected by the State, and we had no difficulty in getting our title. 
We don't use any timber on the public lands. 

Nearly everything around the lake is bought up or taken up. Until recently on the 
other side of the lake we have only taken such timbers as would make logs, but lately 
we have cleaned off not only what was fit for logs but what would make wood. At 
first the cutting off of the timber increased the chances of fire, because we left the 
dry limbs on the ground, but after we commenced to utilize the limbs for cord- wood 
it decreased the chances of fire. 

I am unable to say how long it takes for a second growth to grow up. If all the 
timber was off the hills it would take a very long time before new trees would grow 
up. It is of very slow growth. Fifteen or twenty years won't make much of a tree. 
Some trees we cut are 200 or 300 years old. I think we cut one that was 1,000 years 
old. It was 11 feet in diameter. In Montana it is said the majority of the trees cut 
are 150 years old, and that they are rotten at the heart, but that is not the case with 
ours.' The majority of our trees are from 150 to 350 years old. 

We have yellow pine, sugar pine, and what they call bull pine or black pine, which 
is least valuable to timber. Then we have red and white cedar and red fir. The 
latter is generally rotten for eight or ten feet at the root, called churn bottom. 

From all my experience in the timber business, I think the government ought to 
sell its timber lands. I would grade the price. I would have some man that under- 
stood the business to value the land by section or quarter-section, and I would sell it 
in unlimited quantities. 

We couldn't sell lumber within $10 per thousand as cheap as we do now if we were 
limited in quantity. We have got to have a large quantity in order to pay any profit 
on the improvements. I think private ownership best conducive to the protection of 
the timber. The agricultural lands that I know of are not contiguous to the timber 
lands. We buy as much timber from parties who have taken up 160 acres as we do 
timber land. I would as soon buy the timber in that way as any other. 

Land is nominally sold for $1.25 per acre, and we can't get hold of land unless it 
costs us from $3 to $3.50 per acre ; and we would just as soon pay the difference to the 
government as to somebody else. Instead of that the government gets $1.25 per acre 
and somebody else gets the ilance. There is too much red-tape about it. If you 
want to use the land in the xt two years, you don't know whether you are going to 
get it in that time. They do not plant any timber in this State. I do not know how 
much of the area of the whole State is timber. I can make no suggestions about the 
timber lands other than I have made. There ought to be less red-tape about getting 
titles, and I don't think it makes much difference how the land is sold. I would just 
as soon buy timber of a man who owns 160 acres, as far as the price is concerned, as 
to buy it from the government. Of late years we have got pretty particular in this — 
that we don't buy any timber unless we know the parties own the land. We did used 
to buy without regard to that question. 

Mr. Harris. * I will add another suggestion or two : I think all scrips ought to be 
abolished ; I think that the mineral lands should be sold without reservation, and 
that the miner ought to have the timber that grows on the mineral lands. I think 
there ought to be a uniform method of publishing the decisions that are made by the 
department in land cases, as long as they insist upon the land officers performing 
judicial functions. 

H. M. Yerrington made the following statement : 

I am the superintendent of the Virginia and Truckee Railroad Company, and engaged 
in the timber business. I think the timber-lands ought to be sold, if the govern- 
ment is desirous of getting its money and preserving the timber. They should be 
sold in unlimited quantities. By theintroduction of the flumes which we use in these 
mountains, it takes a large aggregation of lands and all this sort of thing to make 
the business profitable, and the result of it is that these little fellows (small owners 
of timber-lands) they can't make it win, because a flume costs half a million dollars, 
and that's the reason why if they are going to sell wood at a profit, they must sell it 
in large quantities. Our wood is scattered over an area of 50 by 70 miles ; we have 
about 75 miles of flume, that cost about one and a half million of dollars. The timber 
has been cut off so closely at all convenient and accessible points that it won't pay a 
poor man to haul it. 

When I first came here, in 1863, wood was growing within three or four miles of 
Carson ; it was hauled by teams to Virginia City, and was worth about $70 per cord ; 
at that time the consumption amounted to only a few hundred cords annually. When 



PUBLIC LANDS. 607 

we started in, the demand was increased to 200,000 cords a year, and teams couldn't 
do anything, because they could not make it pay, on account of the expense of haul- 
ing. With the increased demand the price of wood fell. Here are thousands of acres 
worthless unless you can get at this timber by means of these flumes. If it were not for 
the flumes, instead of using wood they would go to Wyoming for coal. That is the 
reason why I say if I were the government, I would sell the timber-lands in lots to 
suit customers. 

Mr. Bliss. When the wood was carried by teams (which was about one-half the 
distance it is now carried by railroad) we used to get $35 or $40 a thousand for 
lumber in Virginia City ; we are now selling it for $17. I am speaking now of square 
mining timber. At present we are now bringing wood from California on a narrow- 
gauge railroad in the mountains, then through the flume, thence by railroad to Vir- 
ginia City, for $9 per cord. In Lake Valley, California, when we first went in there, 
they were then talking monopoly, and called it the Bank of California concern. They 
said we were going to grab up the whole country. Now I believe they a, s glad we 
got in there, for I believe there is not anybody else doing business there. About all 
the money they get, they get from our concern. The parties who own land there are 
not able to get lumber to market themselves. They depend on us to buy their logs 
and timber. They can't get it to market and sell it at the figures we do and make 
money without investing a large amount of means. 

I do not think it is practicable to give to a person 160 acres of timber land for a 
homestead, with the proviso that he should cut timber thereon and live upon the pro- 
ceeds. One hundred and sixty acres of such land would not support a man as a con- 
tinuous thing. 

Mr. Wright here suggested that people had been in the habit of filing pre-emption 
claims on timber land, cut the timber off, and then abandon the filing. 



Testimony of S. BZ. Day and others, Carson City, New., relative to the survey of timber lands, 
cutting of timber, irrigation, pastoral homesteads, rainfall, sale of timber lands, arid lands, 
agriculture without irrigation, lien lands and mining school. 

Mr. Yerrington. We have got all the timber lands that we want, and it don't 
make any difference to us what laws you pass on the subject. 

S. H. Day made the following statement : 

I have been deputy surveyor-general of the State for nine and a half years. I have 
read your circular on the subject of lands, and have made up my mind to answer it. 
In my judgment, in regard to the timber lands/one drawback has been that they have 
not been surveyed promptly. At Eureka, for instance, the timber was all cut off before 
the survey was made. About the only timber fit for lumber is found in the Sierra 
Nevada Mountains. In other portions of the State it consists principally of fir, juniper, 
mahogany, and nut-pine. In regard to irrigation, I think under the present system 
all of the water in the State that can be used for that purpose is now utilized for irriga- 
tion. 

Governor Kinkead. I think that by using the proper appliances and having 
money enough to do it, the waters of Truckee Eiver could be made use of to reclaim a 
large amount of land. I have heard of a scheme for diverting water out of that river 
to irrigate about 200,000 acres of land, but it would cost, I am told, $250,000 to do it. 
TJpon this timber question, last fall I was in the southeastern part of this State. I 
was pleased at the immense tracts of juniper and nut-pine which I saw there. They 
.grow on, two or three feet thick," all the way from Eureka down to Pioche, but the val- 
leys are dry. I think the idea of a pastoral homestead a good one. 

I have been in Nevada ever since it was Nevada. I think the rainfall is about the 
same now as in early times, except that we have had a series of dry seasons for the 
last three years. There is not anything in respect that can properly be called timber 
except in the Sierra Nevada Mountains. I would sell those timber lands, perhaps, in 
unlimited quantities. The accessible part of this timber in Nevada has been 
already cut off, and it requires combined capital to get it out. In other places it has 
not been done to that extent. It is getting worse every year. I think these lands 
ought to bring $2.50 per acre. I think it would be injudicious to pass any law with 
regard to arid lands which would drive the great herds of cattle out of the State 
which are now being pastured here. I don't think as a general proposition there is 
any particular conflict between the grazing and agricultural districts. I do not think 
the State is overstocked. Some portions of the State were overstocked last year on 
account of the dryness of the season, but it is not overstocked for ordinary seasons. 
In some places, as in Truckee Valley, they raise very good crops without irrigation. 



608 PUBLIC LANDS. 

We have some Indian reservations in the State, hut there are no complaints ahout them. 
I am in favor of Congress granting to the State a smaller quantity of land than she is 
entitled to under the sixteenth and thirty-sixth sections, the lien lands to be selected 
by the State. 

The State University at Elko does not amount to a great deal as yet, but we 
could establish a mining school with the proceeds of these lien lands, and it would be 
the best in the world, if properly provided for. It ought to be established at Carson 
or Reno, or anywhere contiguous to the Comstock. Such a school would have the 
finest advantages in the world, and I think the geueral government ought to foster 
an institution of that kind. It should have professors of high character, and official 
reports be made by them of the condition of the mines and tests of machinery. I 
think that would do more good to the State of Nevada than anything else, and to the 
country at large. This is the proper place for such a school. Here the scholars could 
have access to the mines every week, and receive practical education. 

Mr. Fassett. The only matter that I care to say anything about is that memorial 
that was forwarded to Congress during the last legislature concerning lien lands in 
place of the sixteenth and thirty-sixth sections. 

Judge Beatty. Upon the subject of square locations of mining claims, I might say 
this: It is a system that has never prevailed in this country, and I don't know any- 
thing about it. The old method of location under the local rules of miners was by 
posting a notice at the point where the ledge was discovered or near the ledge, and. 
that, by the rules of miners, held a claim whichever way the ledge might run ior the 
distance of the claim. Usually, by most of the local rules I am acquainted with, they 
had ten days in which to record the notice, and that held the claim as long as 
the requisite amount of work was done. The notice was recorded in the local record- 
er's office. That was the whole system. It was the means of taking possession with- 
out taking possession. This was changed by the law of Congress of 1872, and we now 
work under that act, still recognizing as being of some validity the rules and regula- 
tions of the miners in regard to certain things, such as posting the notice and record- 
ing the claims, the width of the claims. The act allows the local rules to restrict the 
maximum width within 600 feet. 

In regard to square locations — that is to say, locations confined to the surface lines 
in the form of parallelograms, a system under which the miner would not be allowed 
to follow the ledge beyond his surface lines, I will state that I believe it would be a 
very unpopular system among the miners. But there are advantages in that system. 
I have always doubted whether we did wisely in abandoning the Spanish system of 
location, but the miners are firmly set in the present system. The present mining law 
of Congress was framed by the Representatives in Congress from this coast, and it 
was passed with reference to their ideal ledge, and it has now to be applied to a great 
many formations that it never was passed with any reference to. I think there is de- 
cidedly less litigation under the system inaugurated under the act of 1872 than resulted 
under the old system. 



Testimony of Edward E. Chase, farmer, Wells, Nev., relative to public lands, agricultural 
lands of Nevada, laws, homestead application, local land officers, contested location, rail- 
road lands, pre-emption, homestead patent, and claimants. 

Wells, Nev. 
Gentlemen of the Commission : Having been a resident of Nevada since it was a 
Territory, a practical farmer, engaged exclusively as such for the last twelve years 
in Eastern Nevada, and somewhat familiar with our land system, I venture a few 
suggestions looking to the simplification and economy of the means of getting what 
remains of our public lands into the hands of bona fide settlers, &c. 

1. We were grievously wronged in this, that our lands within railroad limits was 
raised to double minimum. The rule that the lands nearest the road were enhanced in 
value by the road is reversed with us ; the agricultural lands of Nevada become more 
valuable as you recede. This is a patent fact, and is owing to the following causes : 
The market for our produce is found in the mining towns They are off the road. 
We have little or no occasion to ship grain by rail, and on all occasions when grain 
brings a fair price the railroad company enters into competition with us. At this 
time they are delivering hay in Elko for $80 per car, of 20,000 pounds, while I have 
lying before me their letter, asking me $320 more for a car-load of tools for farming 
delivered to me from the East than they charge to Sacramento. Freight on goods 
from the West here is about 2i ceuts per pound ; on hay eight- tenths of one cent. 

2. There is no present reason for " sticking us " with double fees and commissions. A 
township of land in Nevada is not on an average of the intrinsic value of one section in 
the Northwestern States. 

3. The law ought to be so altered that any person living 50 miles from a land office 
can do his business before any officer authorized to administer oaths living nearest 



PUBLIC LANDS. 609 

him. If the reason heretofore given, to wit, to prevent fraud, is the excuse for con- 
tinuing it, I think it no sufficient reason. It is surely more difficult to perpetrate a 
fraud of that kind in the immediate neighborhood where the facts are known than at 
the land office where they are not known. Why a homestead application must he 
made at the office when the final proof is permitted to be made at a distance is difficult 
to understand. 

4. I have a suggestion to make, which will not only overcome all the objections as I 
believe which can be brought to the above, but will prevent many frauds. Make it 
the duty of the register to furnish an abstract of each week's doings for the local 
weekly ; those interested in lands would keep posted ; keep a broad light of that 
kind turned on the proceedings of the land office and there would be less villainy. 

One of the chief est hardships we are subject to is the extortion of the officers of the 
local land offices. While it is made a crime and cause of removal from office to ask or 
receive more than the scheduled fees and commissions, the land officers are permit- 
ted to practice as attorneys in any case coming before them, and to charge all they 
please for such services. In one case, I know that an agent sent in an application for 
a soldier's homestead ; the register objected to the form used, made out new paper, 
and charged and received $30. I believe the fee, &c, is $13. In no case should the 
officers be permitted to charge for attorney's fees for practicing before their own tribu- 
nal. Allow $1 for filing out pre-emption or homestead papers, and limit other busi- 
ness to a certain sum per folio. 

There are several errors in the rules of practice. 

1. It is simple nonsense to pretend that when a hearing has been ordered and a loca- 
tion contested by a person, that after the vacation of the contested location, every or 
any person has an equal show to locate the lands. The officers of the Land Office 
always disclose the fact to their friends, and it is just in my opinion to give the 
preference to the party who has been to the expense of showing that the location was 
improperly held. 

2. It is no less against legal precedents than it is against the equities of trade to 
compel a person defending his location and sustaining his claim to pay half the 
costs. A friend of mine has just paid $50 in gold to the receiver to defend a desert 
land claim of 80 acres, where there was no appearance of fraud, wrong, or injustice. 
He sustained his claim at a cost of twice the value of the land. 

3. The law should make some provision for prosecuting an inquiry into an alleged 
fraud. Here is an instance : One Francis Honeyman attempted to obtain a homestead 
patent on lands he had never lived upon or improved. He procured final proof, stat- 
ing that he had lived upon the land the requisite time ; had fenced and cultivated 140 
acres : had put on $800 worth of irrigating ditches. The case was passed and ordered 
to patent. I learned the facts in the case and informed the department. They in- 
sisted on my taking witnesses at my own expense before the land office to show the 
fraud, and informed me that they had no way of getting the facts in such a case un- 
less witnesses would come forward on their own motion and at their own expense and 
establish them. 

The farmers living within railroad limits think the lands withdrawn from market 
for railroad purposes ought to be restored. We believe by a strict and fair legal 
construction of the railroad act of July 1, 1862, these lands tendered the company were 
tendered as a gift. Section 6 recites as the condition of the grants that the company 
should keep up the road and telegraph lines, so as to pay their cash obligations to us, 
in part, by transmitting messages and carrying mails and munitions of war. Their 
obligation to carry, transmit, &c, for us begat the necessity of keeping up repairs, 
&c. ; in other words, there was no consideration money from the grantee to the grantor 
for the lands. It was, then, in law a gift. The law of gifts is that it is essential that 
it go into effect immediately. If it is to take place in the future it is only a promise,, 
and, being without consideration, the law will not enforce it. 

It is evident the government considered it a gift, and to take place immediately,, 
because the bill fixes the time when they shall take the lands. By section 4 it de- 
clares that when a certain number of miles is completed and properly certified, that 
"then" patents shall issue to them for the 12,800 acres per mile for each completed 
mile. The word " then " can by no possible legal or grammatical construction relate to 
anything but the time when they should take what lands they wished or intended to 
under the grant. Government would have no constitutional right to give an indefi- 
nite period of time for them to accept these lands, and it is not to be presumed that 
they ever intended to exercise it. They hold these lands in trust ; they are restrained 
in the disposition of them to the exercise of that trust within the limits of the com- 
mon good and " general welfare." By the act of July 2, 1864, section 21, it was made 
a prerequisite that the. company should pay for selecting, surveying, and conveying ; 
but by no possible construction could it extend the time. The only reason that the 
Territories through which the road was to pass gave their support to the measure was 
that the lands were to be conveyed then — immediately — and would go to relieve them 
from the burdens of sustaining their municipal machinery by their taxation. That 

39 L c 



610 PUBLIC LANDS. 

act (tlie railroad act) was a tripartite contract. We the people were, by language 
clear and comprehensive, to have the privilege of buying all the lands not "sold at the 
end of three years, at $1.25 per acre ; that is, all of us that were eligible to pre-empt. 
We have the right to demand of you that these lands be in the future subject to that 
obligation. Whenever we offer to tax these lands they tell us they have never accepted 
them. When we offer to pre-empt, the land office takes our declaratory statement, in- 
closes it in an envelope with a prepared affidavit, and addresses it to the perjury de 
partment of the Central Pacific Railroad, and it comes back and is received as evidence 
that the lands have not only been accepted, but sold or conveyed. We hope this com- 
mission will change this in some manner so that we shall be relieved from the shame- 
ful spectacle of seeing the general government asking of the Central Pacific Railroad 
Company what disposition to make of the public lands. 

The plea of the railroad company is that these lands have all been mortgaged to 
one of their number, and that the mortgage is a conveyance ; and while they claim 
that we cannot tax the lands, the mortgage goes unrecorded and untaxed, and we 
carry double loads of taxation in consequence of it. While the improvement of our 
lands adds in an equal ratio to the value of theirs, their lands remain unsettled, de- 
priving us of communities sufficiently dense to have schools or social organizations of 
any kind. 

The Secretary of the Interior, awhile ago, made a feeble effort in our behalf by de- 
claring, I believe, that all lands held by the company were subject to pre-emption. 
Will you for me give him the legal information that the bill reads : "All lands not sold 
or otherwise disposed of at the end of three years after the completion of the road 
shall be subject to settlement and pre-emption like other lands, at §1.25 per acre ;" and 
that it makes no difference how many times it has been sold since, it is always subject 
to settlement and pre-emption until it has been so taken, let whoever pretends to own 
it. No number of conveyances from the railroad company could convey to the holder 
any greater right than the railroad had ; and if these patents do not so read, it is a 
reprehensible negligence on the part of the Commissioner of the General Land Office. 
It was at best a limited grant. It would look much more manly in the Land Office to 
accept of a filing on railroad lands, and leave the company or the grantee of the 
company to enforce-his rights in the courts, than the present course. 

While we have a thousand wrongs to complain of, they mostly relate to the mal- 
administration rather than defective laws. I am constrained to believe that General 
Williamson is totally unfit for the place he occupies. He appears to have no sympathy 
in common with the people ; every ruling has been adverse to them. He throws every 
obstacle in the way of their getting their lands. I believe it is the most sacred trust 
now left with the government. The pride and strength of every nation is in its farm- 
ers, those who till the soil they own. It is the only clear pathway out of this labor 
problem. I am somewhat familiar with the people's wants and necessities. I have 
lived twelve years on this homestead claim. I have tried for the whole time to obtain 
a homestead patent. At every step I have been thwarted by him and those acting 
under him. I have had my claim held up twice for two years and over on some trivial 
question. If I, without laches, without any charge or suspicion of unfairness, have 
to push away ten years, and at a cost of more than the government price of the land, 
am still kept at bay, what show is there for those less acquainted with the forms of 
business ? Many, many have thrown up in disgust, and made recent purchases under 
the desert act. It should be the care of the Commissioner to help these lands into the 
hands of honest homestead claimants, and to guard them in every other quarter. He 
was appointed and is held in his place by railroad influences, and we have no mercy 
at his hands. If your commission can wrench anything away from his grip for the 
people, God speed you. 

Regretting that my time (owing to farm labors) has been so limited that I have not 
time to rewrite and to give more point, if possible, to some positions I have taken, I 
will ask possibly the privilege of supplementing this, if I think of more that is im- 
portant to be said. I would like to take one of your commission through this country 
and get the history of each claim. I think the Indian ring is humane and beneficent 
beside that of the Land Office. 

In haste, EDWARD R. CHASE. 



Testimony of E. C. Hardy, stock-raiser, Elko County, Nevada. 

The questions to which the following answers are given will be found by unfolding 
page opposite page 1 : 

State of Nevada, County of Elko. 

To the Department of Interior, Public Land Commission : 

Honorable Sirs : I hereby acknowledge the honor conferred upon me by the receipt 
of your circular of questions affecting the interest of the people of the Western States 
and Territories in way of disposing of the public lands. 



PUBLIC LANDS. 611 

PREFACE. 

I am strictly an uneducated man. Yon will, therefore, overlook all parts of my 
report that would be bettered or finished by the advantages even of a common-school 
education. 

I will only state facts plainly as they have appeared to me in the course of my prac- 
tical experience. Any further details I may make than answering direct questions 
will be for the purpose of explaining my ideas, or for the purpose of giving you a 
knowledge of the experience I have had in the subject-matter, as will appear, for 
example, in reply to first question in your circular. My report will be short and posi- 
tively within my own experience on the Pacific coast since 1852, twenty-seven years. 

Name, Ebenezer C. Hardy; born in Haverhill, Mass., Juue 8, 1835. Parents emi- 
grated to Wisconsin in 1842. I came to the Pacific coast (Oregon) in 1852, where I 
acquired land under the old " donation law," with which I became familiar. In 1864 
I sold goods and mined in gold placer in Grant County, Oregon, where I became ac- 
quainted with the regulations of locating placer mines. 

In 1868 I moved with my family to Boise" City, Idaho Territory. I was with S. M. 
Wessels, first locator of lead ores bearing precious metals. These locations were made 
in Owyhee County, where I first became acquainted with that kind of ore bodies or 
contact veins. I have carefully observed the mountain timber interest of the various 
commonwealths. I was one of the first locators of Ward mining district, in White 
Pine County, Nevada. I moved with my family to Nevada in the fall of 1872, and 
have resided here since. My occupation at this time is growing sheep, cattle, and 
horses. 

3. I acquired title to 160 acres of land, and my wife, Mrs. M. H. Hardy, to 160 acres 
of land, under and by virtue of an act of Congress approved the 27th of September, 
1850, commonly known as the " old donation law." Said land was situated in Skama- 
nia County, Washington Territory, certificate No. 112, issued by Andrew Johnson. 

4. Answered in No. 1. 

5. I settled on the donation claim August 11, 1855, and obtained patent December 
22, 1865, being ten years. This was an uncontested case, no conflict of title or of lines 
in any way. I think my expenses were about $25, besides a private survey I had made 
to guide me in making my fences, as under that act of 1850 as amended our lines had 
to be run north and south and east and west. I think my neighbors received patents 
about same time. We had to live four years on the land in compliance with law. 
Thus, you see, we were six more years obtaining patent. Contested cases, such as 
Salem town site, Salem, Oregon, and Upper Cascade Landing, at the head of Cascade 
Falls, Bush vs. Bradford, in Washington Territory, much longer. 

I consider the "donation law" and the "homestead act" the best for the actual settler 
and the best for the commonwealths of any laws that are now or ever have been in 
force : For the settler, because when poor he acquires a home at a time when he has 
no money to pay for one ; to the interest of the country, because the offer causes some 
to engage in agriculture that would not otherwise do so, and agriculture is the foun- 
dation of civilization. It attracts industrious actual residents, who all have the one 
object of making homes, and no necessity or opportunity existed under these laws to 
mortgage them for purchase money. A settler under these circumstances would im- 
prove his place without fear of losing ; could thereby contribute more largely and 
confidentially to the support of common schools, roads, bridges, and public buildings, 
churches, literary, scientific, and charitable institutions. I would say here that prob- 
ably but few Eastern men can realize the responsibilities that are, by force of circum- 
stances, thrown on frontiersmen in general. I consider they have double to do besides 
paying for their land ; generally have Indians, and Indian agents, and military officers 
all against them, because the settler is really the intruder ; for in but few cases is the 
land treated for, and the treaties complied with. 

6. I have not seen defects in the land laws, except that conflict of railroad companies 
with the interest of settlers, in consequence of tardiness of surveys. It is my duty to 
call your attention to this subject, with the hope that it may lead to the saving of 
thousands of homes being made desolate. Here we have an example : The Central 
Pacific Railroad has been finished ten years, and the land along the route is not yet all 
surveyed. I have made $4,000 worth of improvements on unsurveyed lands. These 
improvements have been made from time to time as my business required it. I have 
no means of acquiring title to this land. Should I lay desert claim on it, part would 
fall on the Central Pacific Railroad land, and they do not offer their lands generally 
along the Humboldt for sale. Under this condition of affairs what would be the 
chances of my heirs in the event I were to drop off— die ? Thousands of others along 
Humboldt are alike situated. Besides, I see here in Nevada no general public interest 
taken. Every man seems unsettled, public buildings neglected, taxes enormously 
high, and a general unsettled feeling among the inhabitants along the line of the 
forty-mile reserve. I firmly believe in granting lands for the construction of roads. 
They advance civilization, and are every way beneficial. This country is worthless 



612 PUBLIC LANDS. 

without the Central Pacific or some other road. But I must pronounce it impolitic 
and unstatesmanlike to make such grants without providing a method and means of 
survey at some time, so as to have the survey made in sections of country not longer 
than one year behind the completion of the road. If necessary, give more land and 
make the railroad companies survey it or defray the expenses thereof, and receive 
their land ; then it would be taxable ; and, to avoid the taxes, they would sell to actual 
settlers. This would be well for the country. Otherwise let their lands be forfeited. 

7. The public lands of this State are not (I should estimate) more than one-fiftieth 
agricultural. In a few of the very highest mountains and on the north hill-sides very 
small bodies of timber are found that will answer to saw into common lumber and. 
mining timber. These bodies of timber are already (probably) more than half con- 
sumed for mining purposes and to build mining towns. On many of the low mount- 
ains are scattering " nut pines," or " pinion pine," and a "juniper cedar." Neither 
of these two last-named timbers are fit for building or lumber, but are very useful for 
charcoal for smelting ores. And the "juniper cedar " answers a good purpose for fence 
posts for wire-fences, being generally about the proper size for one post. Probably 
one-third of these two kinds of timber are already used up, and possibly one-half, as 
in the vicinity of large mining camps and near the larger railroad towns nearly all is 
gone for a large radius surrounding. 

As to the pastoral interests of this State it is secondary, the mining interest being first 
and the agricultural interest third. 

8. I do not think it practicable to make a geographical division of lands in this 
State, Nevada, or Idaho, or Arizona, but will suggest a plan in answer to question 19. 

9. As to land parceling, I think the present method good. 

10. I would classify lands in States or Territories where irrigation is necessary to pro- 
duce an agricultural crop. 

First. Land that has water running through it or so near that the natural waters 
could be practically brought on to it to water the whole tract with, as first-class lands. 
Such lands I would dispose of under the old methods, and under the " desert land 
law," not higher than $1.25 per acre even within railroad limits, as all the good lands 
of the agricultural States have been sold at these prices ; and it must be borne in mind 
that irrigation is a great expense, first for ditches, and secondly an annual expense 
of conducting the water properly over the crop-land. Besides, these lands are generally 
poor and require more manure, as the water washes it away, and the ground is porous 
and much of the richness filters through below. 

Secondly. I would devote one section or more of lands as pastoral to each actual 
settler of such land, if cultivated, as would be compelled to hoist water with wind or 
other power to irrigate. I would make the term of residence to acquire a patent four 
years. I would further allow the settler to buy the same at 25 cents per acre after 
living on the same two years. Then I would allow any citizen of the United States 
to buy one section of such land at 25 cents per acre, provided he should first improve the 
said section of land to the value of $500, and then require the local land office to re- 
quire ample proof to said improvements being equal to that amount before issuing 
certificate for patent. This last proposed law is more needed in this State than any 
commonwealth west of the Rocky Mountains, as the land is poorer, yields less grass 
per acre than any other, and will require considerable inducements to get settlers to 
buy and improve such lands. 

AGRICULTURE. 

1. The climate dry ; rainfall light ; season short ; snowfall in deserts light, from 6 
to 12 inches, the bunch-grass land often covered very deep. 

2. The rainfall is principally in spring and fall ; sometimes light rains in May and 
June. I cannot give you the number of inches, but surely less than any commonwealth 
west of the Rocky Mountains«except Arizona. The general supply of water comes in 
the early crop season, and often in places does not last long enough to fully mature all 
crops. 

3. No portion of the State can be successfully cultivated without irrigation. 

4. Probably 1 acre to each 100 acres may be cultivated by irrigation of valley lands. 
More could be cultivated if water could be obtained. Upon second consideration I do 
not think there is running water to irrigate more than 1 acre to 500 acres, to average 
the State over. 

5. Wheat, oats, barley, potatoes, turnips, beets, &c, and in the southern part of the 
State, in low altitudes, corn and vines and grapes, but generally in southern part of the 
State there is no water for irrigating lands. 

6. A large quantity of water is required to irrigate land in this State, as the land is 
generally porous and the water sinks rapidly into the earth. There is no stratum of 
clay underlying the soil to keep the moisture up as there is in Illinois and Wisconsin. 
Added to this, the dryness of the atmosphere causes great waste by evaporation. 

7. The source of supply of water is from small mountain streams and springs 
that soon sink in the desert valleys. Even the larger streams — Humboldt, Carson, 



PUBLIC LANDS. 613 

Rees, and Truckee Rivers — sink in this State. Fair crops are raised in the State 
to an altitude of 4,000 feet. A line orchard is being grown at Humboldt House, Cen- 
tral Pacific Railroad ; elevation, 4,262 feet. This rule applies to plain levels. In gulches, 
where the little valleys are more protected from frost, crops are grown at much higher 
altitude. Elko is 5,030 feet, and crops are grown higher on tributaries of Humboldt, 
but are confined to wheat, oats, barley, &c. 

9. I am unable to state what portion of water is lost in ditches. I have before stated 
the waste is great from dryness and openness of soil and atmosphere dry. The laws 
generally of the "Western States provide that parties living on the heads of streams 
and having first use of water shall turn the same into its natural channel, and vari- 
ous decisions have been made giving damages to second parties where water is wrong- 
fully wasted by first parties to the injury of second parties. These laws are very 
important, affecting some of our heaviest mining interests, as well as agriculture. 

Water has been taken up generally where it is anticipated that a mining town will 
be established ; that is to say, where good-looking mining prospects are found, and 
also where the water is needed by parties for irrigation. Nevada State law provides 
that the locator of water may have the plat of his ditch or flume recorded in recor- 
der's office of the county in which the proposed ditch or flume is to be constructed, 
then shall commence work on same within thirty days, and continue to work on same 
until completed. This act was approved March 3, 1866, and will be found in volume 
4, page 415, Nevada statutes. 

11. I have heard of several conflicts of water right, but only think of one now : 
Martin White Mining Company, and Mr. Wellington, in "White Pine County. The com- 
pany finally bought the land from Wellington and the water-right for $12,000. This 
Martin White Company's place of business is at Ward district, White Pine County. 

12. I have heretofore estimated 1 acre in 100 to 1 acre in 500 to agriculture ; the rest 
pasturage only. 

13. It is. in my opinion, practicable to establish pasturage homestead, as I have 
before suggested under the head of disposing of the public lands of the Western States. 
Question 14 explained under same head. 

15. It is impossible to make any reasonable estimate on the lands of this State, as 
some lands will support ten times as much stock as other lands in same county. I do 
not think this State will raise on a general average more than one-fifth as many cat- 
tle as Idaho Territory to the same number of square miles, and about one-tenth as 
many as Oregon or Washington to the same number of square miles. That is, leaving 
out of this estimate the great Cascade Range timber belt and sound country, i. e.,I 
mean to include only the grazing portion of Washington Territory which lies east of 
the Cascade Range of mountains. 

16. About 200 head of cattle will be required at present rates of cattle in this coun- 
try to support an average family. One hundred head, or less, if all stock round as 
usually grown — if the grown cows thereof were used for dairying connected with 
stock — would be amply sufficient. It is proper here to state that this State is poor for 
dairy business in the high altitudes, where bunch grass grows plentifully. The sea- 
son for butter making is short ; until first of June the cows eat wild onion, that gives 
milk and butter a characteristic taste ; then the grass becomes too dry about middle 
of September — in dry season, sooner ; so only three to four months can be calculated 
on, even from cows that bear calves, at suitable seasons. In the more desert parts can 
begin earlier, but must close earlier. On account of dry feed and scarcity of water, 
cows will soon have to go too far from water for feed. 

17. Elko County now has all the stock it will possibly support, and for your benefit 
I have gotten the returns of Assessor Henry V. Mundell for 1879 : 

Number of horses assessed.. 18,676 

Number of mules assessed 5, 381 

Number of asses assessed «... 15 

Number of cows, calves, and young cattle assessed as stock cattle 60, 000 

Number of beef cattle assessed 36,432 

Number of yoke oxen assessed 240 

Number of sheep and lambs assessed 9,432 

Number of hogs assessed 1 1, 400 

Total stock 131,576 

Deduct for hogs 1,400 

130, 176 
Stockmen estimate seven sheep consume equal to one cattle; thus subtract 
for sixth-sevenths of the number of sheep 8, 085 

Cattle it would support * 122,091 

Elko County is about 160 miles square, or 25,600 square miles, showing that it sup- 
ports only a fraction less than five head to the square mile. I think it is safe to esti- 



614 PUBLIC LANDS. 

mate that there is one-third more stock than the books show, or about seven head to 
each section of land. There is a vast amount of waste land in this (Elko) County, 
such as mountains and desert plains ; yet I think it is the best county for stock in the 
State, and Humboldt County next, and southern counties the poorest. 

18. Grass has diminished fast in all the country I have lived in, to wit, Oregon, 
Washington, Idaho, and this State ; but as the grass gets short, growers turn their 
attention more to sheep. 

19. I know of only one firm (Scott & Hauk, of Elko County) who fence. They keep 
their main band of stock on Snake River, in Idaho, and drive to their inclosures in 
Humboldt Valley the beef cattle, and hold them until the market suits to ship. In 
this inclosure they breed their fine horses and fine bulls. As a general rule cattle 
require their liberty in the winter in this State, as by instinct, when a storm is c om- 
ing, they go to the cedar trees or in gulches, if they can, away from wind. 

20. I think if stockmen could buy land so that they could afford to fence, much 
better stock would be raised. They could grow.fine stock, and a general improvement 
in beef would be the-result. As it is now, land is too dear for that purpose, includ- 
ing fencing; and to turn fine bulls or fine horses on to a range, all get the use of them 
alike ; thus the owner loses part of his investment, and soon gets discouraged with 
trying to improve his stock. 

21. Answered heretofore ; mountain springs and spring lakes. 

22. In grazing or feeding sheep and cattle, stockmen estimate one head of cattle 
equal to seven head of sheep. 

23. Growth of grasses diminishes as fast, if not faster, pastured with sheep than it 
does with cattle. 

24. Sheep and cattle graze readily and voluntarily on some lands until grazed too 
close. Then the scent of the sheep left on the vegetation or herbage will cause the 
cattle to change ; but a rain or snow seems to renovate the range. 

25. The prejudices cattle-growers have toward sheep-growers is founded in the fact 
that when a range is pastured closely down sheep can and will readily live on shorter 
feed than any other class of stock, and horses next ; so when the range is partly eaten 
out the cattle-grower must move first if there is moving necessary. 

26. I do not think it practicable to herd in this State generally more than 1,500 
sheep in a herd, as they have to roam over too much ground to get feed ; and while so 
scattered the cayotes, or parairie wolves, kill them before the herder can reach the op- 
posite side of the herd. 

27. Answered. 

28. I have never known trouble to arise generally in ascertaining corners where I 
have lived. 



I do not think the timber interest of this State worthy of your attention. But the 
same laws that govern other States would be applicable to this State, where there is 
actual sawing timber. 

1. Answered heretofore in explaining the general characteristics of the country. 

2. There is no timber planted in this country. 

3. I would dispose of the public timber lands by homestead and pre-emption of 160 
acres. For instance, as timber is about to be valuable, the sooner the poor man set- 
tles on it and protects it from waste until such time as he can sell it, the better. I 
have observed it in Oregon, Washington, and when traveling in the Sierra Nevada 
Mountains, in the vicinity of Truckee. I think the method as good to preserve the tim- 
ber as any, and the poor man gets part of the benefit ; can cut the timber and market it 
himself, and establish a business in accordance with his means and intellectual ca- 
pacity. This policy makes competition in the timber business and prevents monopo- 
lies in timber business, thus protecting other business with fair rates that might other- 
wise suffer. 

4. I think I would only allow timber to actual settlers, and at one price. My object 
in so doing is, as I before stated, to guard the consumer against monopolies and con- 
sequent high prices. 

5. Forests fallen here do not grow up again. 

6. In Oregon these fires generally were first set by Indians to chase the game, and 
made sad havoc. My remedy would be to kill the Indians and Indian agents and an- 
nihilate the Indian Bureau, the curse of all frontier countries, as well as the Indian 
himself. I will leave the subject of prevention to the people of the Middle States, 
who suffer most from these destructive fires. 

7. Nothing to offer. 

8. Our local custom here is to possess the timber with a kind of brush fence. Idaho 
had a possession timber law. 

9. No answer to make ; have not formed opinion. 



PUBLIC LANDS. 615 

LODE CLAIMS. 

1. My main experience in lode mining was in South Mountain, Owyhee County, 
Idaho, as owner of argentiferous galena and carbonate ore mines. 
2, 3. Not observed sufficiently to reply intelligently and satisfactorily. 

4. I do not think the top or apex, the course and angle or direction of the dip of 
veins or ore-bodies can be determined in the early workings. I know it is wholly im- 
possible as to contact veins. (See cuts of veins and ore-bodies, as found in different 
parts of the world, which you will find finely illustrated and their history explained 
in Von Cota's treatise on ore-deposits, written by Prim.) It is the standard history of 
mines of Europe. Every new mining district presents something new and peculiar to 
its locality. 

5. I do know the rights of discoverers are not protected under the present laws ; 
but ore-bodies are of so many shapes in different localities, and even in the same ledge 
or vein, that I cannot propose a law that would protect the discoverer without blight- 
ing the prospects of other prospectors. 

9. The outcrops of lodes or ledge matter are sometimes wider than the lawful width, 
as, for instance, the " Original," located by T. M. Wessels and myself, in South Mount- 
ain, Owyhee County, Idaho, as it is different in form from anything I have heard of 
or seen described in Von Cota's treatise. I will give you a rough diagram here. 

We located the ledge, supposed to be 100 feet wide of low grade ore, or ledge matter. 
It was tractable for two miles plain. We claim 3,000 feet in company, under old law, 
running eastwardly and westwardly from discovery stake and work. When, after years, 
we organized a company in San Francisco for work, Donally goes on to our ground 
and sinks a shaft, as marked, and finds a perfect vein running in nearly opposite di- 
rections, calls it by a new name and separate ledge, running different from our claim. 
The company preferred to stand the blackmail rather than litigate and buys him out. 
After further developments were made, we found all the true ore, valuable to work, 
was in these crop veins, each one running in same direction and passing through and 
outside of main strata of ledge matter same distance on both sides. All valuable ore- 
bodies in the camp were crossing this ledge belt in same way, although not generally 
understood, as we did not desire litigation. 

I could illustrate true fissure veins, such asComstock and War Eagle, and contact veins, 
such as Eureka and Ward, district South Mountain, Raymond and Ely, and Emma ; 
but I have hurriedly consumed more time than I have space. I know as much about 
contact veins as I desire to know ; if I knew less might recommend more. I do know 
that I could not propose a legislation that would prove equitable and satisfactory to 
me. I will, therefore, leave the subject to those who have more capacity, urging you 
to be cautious and examine the history of mines in Europe ; ours in America are simi- 
lar, no two localities exactly alike. For a period of fifteen years I have studied the 
nature of ore-bodies, that I might be able to work what I had intelligently, or invest 
in others prudentially, and have decided that relative to contact veins nothing can be 
judged except what is opened up and shown. Fissure veins are easier to form an opin- 
ion with regard to, and would be easier to regulate by law, for reasons of their peculiar 
shape, as you will readily see after looking over Von Cota's treatise on ore-deposits 
by Prim. 

I will state that I think the present method of recording as good in practice as any 
I could suggest. 

I would answer some more of your questions with regard to the method of locating and 
recording lode and placer claims, but I have already held this matter two months too 
long, and fear that in case you do find any facts contained herein that may be considered 
by you practical to adopt 7 the receipt thereof will be too late to be serviceable to you. 
The pressure of my business has caused me to put the matters off from day to day, and 
finally has been poorly done evenings when I ought to have been at rest. 

Again thanking you for the honor conferred upon me, by soliciting my opinion, 
based on experience, and hoping you may have more satisfaction in conducting your 
labors on mines and mining than I could have, if the work rested with me, 
I am, most respectfully, yours, 

E. C. HAKD.T. 



Suggestions of the Hon. C. N. Harris and others, at a meeting held in the governor's office, at 
Carson City, Nev., relative to the lest system of controlling and disposing of the public do- 
main, and recommending such changes in legislation as may be beneficial to the people of the 
State. 

On the evening of the 31st day of October, 1879, a meeting was held in the gover- 
nor's office, at Carson City, Nev., at which meeting there were present the following 
prominent citizens of the State among others, viz : His Excellency Gov. J. H. Kinkead, 



616 PUBLIC LANDS. 

Chief Justice W. H. Beatty, Deputy Surveyor-General I. N. Fassett, Secretary of State 
Joseph Babcock, Ex-Deputy Surveyor- General S. H. Day, ex-District Judge F. W. 
Cole, of Eureka, Hon. C. N. Harris, United States land register, at Carson City ; S. C. 
Wright, receiver of United States land office ; H. M. Yerrington, D. L. Bliss, Hon. 
James Crawford, Superintendent United States Mint, at Carson City ; Hon. O. K. Stamp- 
ley, N. Soderberg, esq., attorney at law, and George G. Lyons, esq., private secretary to 
His Excellency Gov. J. H. Kinkead. 

Mr. Donaldson, member of the United States Land Commission, having stated the 
object of the meeting and requested of all the members present a free expression of 
opinion and of their views in regard to the policy of the Federal Government as to 
the best system of controlling and disposing of the public domain within the State, 
and such changes in the legislation of Congress as might be beneficial to the people of 
Nevada — 

The Hon. C. N. Harris made substantially the following statement : 

I think there are at present too many papers and too many forms used in the land 
office, and I think the proceedings in obtaining titles to land from the government 
could be greatly simplified. It is also my opinion that all fees ought to be abolished, 
and that the officers of the land office ought to receive fixed salaries. 

The ruling of the department to the effect that when an applicant files his declara- 
tory statement to purchase lands, no matter whether he consummates it or not, he 
thereby exhausts his right to purchase and to acquire homestead, I think is wrong. 

There is another rule which I think ought to be changed. In the case of the selec- 
tion or abandonment of homesteads we take the proofs in the matter, send up the 
papers to the department, and perhaps, in the course of a year, the department sends 
them back. I think in the first instance, as we take the proofs, instead of recommend,- 
ing a decision one way or the other, we ought to be permitted ourselves to enter up a 
judgment in favor of the party entitled to the land. I think the register ought to 
have a seal. He ought to have the right to subpoena witnesses and perpetuate testi- 
mony. All mining recorders ought to be abolished, and the business ought to be put 
into the hands of the officers of the United States Land Office with power to appoint 
deputies. 

At present in a mining district half a dozen persons, who may not be miners, may 
organize a district, and make by-laws, limiting the amount of ground which shall con- 
stitute a mining claim. They may elect somebody recorder, and the only entry or evi- 
dence we have of the claim of the miner is a copy of his record of the notice. Sup- 
pose the paper is burnt up or the recorder absconds. In such cas9 no patent can issue. 
Now, if the claims are filed in the local land office, and are reported at the end of the 
month to the Commissioner of the General Land Office, there is a complete and perma- 
nent record. If the records of the land office are burnt up, the Commissioner has them, 
and vice versa; if the officer of the land office attempts to alter them, it is impossible to 
perpetrate the fraud, because it is sure to be detected, and the officer of the local land 
office would be prevented from attempting any alteration for the same reasons. 

Here Judge Cole remarked that it would be impracticable to abolish the mining 
recorders, on account of the great distance, often many hundred miles, between the 
land office and the mining district. He said it was true that the county recorders 
might be appointed deputies, but that would not help the matter materially. Mining 
districts are generally organized very suddenly. People sometimes flock in there in 
great numbers in a very short time, and there have been camps in this State and else- 
where where the best locations have been made in two or three days. It is the rule in 
most districts that a mining recorder goes on the ground when he records the claim. 
I see no reason why the government should exact that the miner must go to the land 
office or its deputies when he locates a mining claim. The government never exacts 
that a man shall come to the land office when he makes a location to pre-empt agri- 
cultural land. 

Mr. Crawford. It seems to me that there is an easy way to obviate any difficulty 
in this matter. Some time ago I went down into Churchill County and located a mining 
claim there. I recorded it with the district recorder (that is the mining recorder there), 
and then I came by the county-seat, and recorded it there. A man could make a re- 
cord that way. 

Judge Cole. There is no law authorizing such recording. 

Judge Harris (continuing). I think, also, that all these contests about mining 
titles could be tried by the district land officer. The whole matter of referring any 
questions of this sort to the local courts merely involves the whole proceeding iu in- 
terminable trouble, voluminous, and expensive litigation, and without results that 
are at all satisfactory to the administrators of the Federal law. It is simply an abso- 
lute decision of the local tribunals without the intelligent adjustment by the Federal 
authorities of the rights of the claimants. I am speaking now principally of the 
questions in regard to priority of location, which is the most serious source of liti- 
gation. 

Question by the Commissioner. Have yon heard the proposition of square locations 
discussed ? 



PUBLIC LANDS. 617 

Judge Harris. I have talked it some myself, and conversed with a few gentlemen 
upon the subject. My opinion is that eventually it will be necessary to change the 
whole system of mining locations to that of square locations, no matter whether the 
ledges are perpendicular or horizontal. 

Mr. Wright. I think that system would work very badly in this State. 

Judge Cole. It would not work in Eureka district at all. They had square loca- 
tions there. The mining laws of that district at one time provided for such locations, 
but the system was soon abandoned as impracticable. 

Judge Harris. I think the present system of patenting ledges merely postpones 
to a degree the precise trouble that exists and always has existed in mining proper- 
ties, frauds and the like in the absence of patents. 

Question. In getting patents from the General Land Office, how long does it take 
you? 

Answer. There is nothing that will enable me to state that even approximately. It 
may take months and it may take years. 

Mr. Wright. That depends upon how much you can afford to send to Washington 
to some gentlemen there to get them to take up the case speedily. In that way one 
man can get his patent in a few weeks, while another man must wait for years. I 
think there ought to be no preference. 

Judge Harris. I have heard the idea of a pastoral homestead advanced. As I un- 
derstand it, it is based upon this theory : 160 acres in the Eastern States will sustain 
a family. It will require about 30 acres of this arid land to feed a beef, and 100 head 
of cattle will keep a family, and that, therefore, a man should be entitled to take 3,000 
acres of such land for a pastoralhomestead. That idea strikes me decidedly favor- 
ably. In fact, we must in this country, under a peculiar condition, absolutely depart 
from all known regulations prevailing in the Eastern States, in order to adjust our- 
selves to what we have. Of course no man should be entitled to such a homestead 
except upon arid lands. 

Another proposition : The wealth of our State, outside of mining, is cattle. We are 
going to be largely a stock-raising people. I would not .be in favor of any law that 
would drive on these great herds of cattle that are now being pastured in different 
portions of the State. I do not think that that industry should not be fostered be- 
cause such property is generally or sometimes held by monopolies. I am not favorably 
impressed with the idea of leasing lands for such purposes generally, but it may be 
that in the course of proper legislation for the purpose of distribution of the domain 
that a system of leasing might be practicable. My theory is that the disposal of the 
public domain finally should be arrived at as speedily as practicable. I would sell all 
the land cheap and in unlimited quantities, and I would protect the actual settler. I 
would sell the timber land and on easy terms, and as required by the business interests 
*of the State. I am hardly able to say whether I would limit the purchaser to any 
fixed quantity. I would grade the price of the land ; the minimum price should be 
about $1.25 an acre, but I think that land valuable exclusively for timber on an aver- 
age ought to bring about $2.50 per acre. 

I believe that private ownership is better protection than public ownership as a rule, 
and for that reason favor an early disposal of the public domain. If, however, no 
change is made by Congress in the laws governing the disposition of the public tim- 
ber lands in any other respect, I think they ought to be put under the jurisdiction of 
the district land offices of the United States. (Of course I do mean that the Land 
Office should have jurisdiction over prosecutions for the infraction of timber-land laws.) 
There is always a serious objection with the American people to the interference by 
oufcside officers, such as these timber agents, who now practice a system of espionage 
upon the people. It is anti-American. It is not a desirable officer to place anywhere ; 
but, if you are to require the land officers to perform judicial functions, I think the 
matter should be placed in their hands entirely. 

Again, if the government does not sell or pass a law to sell the timber lands, I think 
it wonld be wise to authorize the district office to issue permits to cut timber upon the 
public land, under proper regulations, so as to protect the forests. At present the rav- 
ages of fire and destruction of timber seems to be less extensive than in former years. 
I have never studied up that matter so as to enable me to say why this is so. 

Mr. Bliss. I think the reason of that is that all the good timber land has been bought 
up, or taken up, and is held by private ownership. Up at Lake Tahoe, whenever we 
discover fire, no matter on whose lands, we go and put it out, or send help to put it 
out, right at the start, and so do other adjoining owners, because it is to our interest 
to prevent the spreading of such fires and save other adjoining timber. 

Mr. Donaldson (to Mr. Harris). What about the surveys of the public lands ? Can 
you make any suggestions about it ? Are you in favor of the rectangular system or 
not ? 

Answer. I am, with this modification : That a large portion of what you call arid 
land should be surveyed in tracts, and not subdivided. We have a great many com- 
plaints about the lack of permanent monuments on the surveyed lands. People have 



618 PUBLIC LANDS. 

to employ surveyors to go and hunt them at a great expense. There ought to be a 
system of permanent monuments. As to the surveys, I think they should be made 
more upon the suggestions coming from the wants of settlers than from any system. 
There should be a paid corps of men to do the surveying, -and the contract system 
ought to be abolished. 

Upon the subject of irrigation, nearly all the water that we have in the State is in 
the main used at present, but I think more could be irrigated by building reservoirs in 
the mountains and with improvements in science of irrigation. I should undoubtedly 
favor a national or State system of irrigation. I think the national government should 
give to a man as reward all the land that he irrigates. I think some improvements 
could be made in the township plats, furnished by the surveyor to the land office. 
Such plats ought to contain an accurate topographical description of the land. The 
deputy surveyor could take a barometer with him when he goes to survey the land to 
enable him to give necessary information about the climate. If he was a paid sur- 
veyor and took more pains than at present he could tell you the altitude of the mount- 
ains and the plains and define that on the map. That would at once classify the 
lands. We are called upon interminably to give information to people at a distance 
as to the character of the domain where there are vacant lands, &c. ; and we are 
wholly unable to give any reliable information. We see simply upon the maps squares 
of lands. We are unable to tell from any topographical description what is the char- 
acter of the land, and whether available for settlement, and it is peculiarly necessary 
in order that the land office may serve its proper papers that we should have these 
topographical features. 

Mr. Bliss. They lay down streams on the map and some of them will only have 
water in them two or three months of the year. 

Judge Harris. On these maps there are to some extent statements as to what is 
meadow land and mountains and the like. 

The present system of disposing of the public lands I regard as wholly insufficient. I 
am unable to say whether the State has realized anything out of the sales of lien lands 
which have been sold here,»on some of which the purchasers have paid 20 per cent, 
and afterwards abandoned them. It has been suggested that the general government 
should give to the State in lieu of the 1 sixteenth and thirty- sixth sections a smaller 
amount of land, to be selected by the State giving the State scrip for such lien lands. 

Governor Kinkead. The last legislature petitioned Congress to give to the State 
two millions of acres instead of the grant of the sixteenth and thirty-sixth sections, 
which amounts to upward of four millions of acres, allowing the State to select such 
lien lands. 

Mr. Harris. If I remember our records correctly, scarcely any of those lien-land 
selections have been as yet confirmed to the State of Nevada. I am unable to say what 
the reason of that is. 

Another thing : The land officers ought to receive official notice of the issuance of 
patents. In the records of the Land Office there is a column headed date of patent, 
but we seldom receive official information of the issuance of the patent. I have one 
instance of that. It is said that the Scorpion patent was issued some time ago, but we 
knew nothing about that officially. 

Mr. Yerrington. Have you received notice of the issuance of the Fairfax or Ver- 
mont patent ? They have received one recently. 

Answer. I have never received any notice of any. 

Question (by Mr. Donaldson). What other suggestions can you make in regard to 
the public lands. Give us any ideas of your own on the subjecc. 

Answer. I don't consider Nevada an agricultural State. It is mineral and grazing ; 
agriculture is incident. I think the government ought to take measures looking mainly 
to an early and final disposal of the whole domain, and I think it ought to all be surveyed 
except running the subdivisional lines of the township. I think all theso questions 
about the pasturiug of cattle and the use of water ought to be settled u»der the ex- 
isting law of Congress ; the first appropriator has a right to take the water for bene- 
ficial purposes. There ought to be a law requiring the purchaser of land to pay for 
the same within a certain time or abandon it. I would make the limitation about one 
year. I think the Land Office should have jurisdiction to prescribe the terms and con- 
ditions under which one partner in a mining claim may sell out the rights of his co- 
owners, and the notice to be given in such cases. No other suggestions appear to me 
at present. 



PUBLIC LANDS. 619 

Testimony of J. C. Co&ney, Fort Bayard, N. Mex., relative to lode claims. 

The questions to which the following answers are given will be found by unfolding 
page opposite page 1 : 

Fort Bayard, N. Mex., 

December 15, 1879. 
Public Land Commission, Washington, D. C. : 

LODE CLAIMS. 

1. Miner and prospector for nine years. 

2. No two men construe the United States mining laws alike. Sections 3 and 14 con- 
flict, which is one of the greatest causes of litigation. 

3. The filing of surveys of lode claims which overlap on the surface should be dis- 
continued. 

4. The top or apex of a vein or lode is the width of the vein or lode on the surface ; 
but the United States mining laws means the top or apex to be the width of the claim^ 
600 by 1,500 feet. (Section 3.) The dip of a lode cannot be determined in the early 
workings of the lode. A vein dips more the first 200 feet from the surface than after. 
A vein will dip more when carrying metal than when it is barren. 

5. No ; the rights of the discoverer are not properly protected under present laws. 
Subsequent locators beat the discoverer in all cases. We owe all the discoveries of 
mines and new mining camps to poor men, and the men of means beat them out of 
their rights. 

6. Litigation does not grow out of not being able to determine the dip of a vein ; it 
grows out of sections 3 and 14. Section 3 gives all the surface and all below the sur- 
face ; section 14 allows the subsequent locator to follow the vein under the surface of 
the prior locators claim until he strikes the vein of the prior locator's claim, &c. 

7. Yes, often ; and the contest settled with rifles. 

8. Yes, if he had not a good rifle. 

9. I don't think there are five claims in the United States wider than the legal 
width, and they can't be called veins or lodes ; it is a multiplicity of spurs or seams. 

10. Yes. Crossing a deep gulch or canon they will run at right angles on each side 
of the canon. A vein of over a foot will not run outside of the side lines in 1,500 
feet. 

11. It works to the disadvantage of a poor man under present law. 

12. If A is a poor man and B is wealthy ; A has no means of going to law, and B 
gets his claim. 

13. Yes ; not only from the dip, but from cross-lodes and spurs or seams running 
out of the mother lode. Subsequent locators locate those cross- lodes or seams across 
the prior locator's claim, in accordance with section 14, and they work the prior locator's 
ore if the prior locator is not rich enough to sink down or drift to prove that they are 
on his lode. 

14. If a locator has 300 feet on each side of his vein, he should not be allowed to 
follow the dip. There is not one vein in a hundred that will dip so much as to pass 
outside of perpendicular lines drawn down from the side lines in less than 3,000 feet, 
and it has been proven that veins do not pay for working below that depth. Lime- 
stone deposits are different, and the metal lies in all shapes and forms. 

15. Yes, it was done in the district formed by miners and mine-owners only. A pres- 
ident and secretary were appointed and one blank book furnished, the boundary lines 
of the district established, and the amount of work required or depth of a shaft or 
length of a drift to be drove to constitute one hundred dollars' worth of work. Cut- 
ting down claims and district recording is becoming obsolete. We record in the 
county in which our claims are situated. 

16. The effect of a record in the county is good as far as I know. The mode of tak- 
ing up claims are all about the same. The vein is described by prominent objects and 
adjacent lodes that are well known ; the papers are made out on the ground and signed 
by the locator and witnesses, and a copy of the same sent to the county clerk for 
record. 

17. Yes, if changed to the land office. 

18. Yes ; I have known district records to have been destroyed. The security is to 
have no district records ; to have it in the county or United States land office. 

19. The initiation of record title should be placed exclusively with the United States 
land officers. 

20. Yes ; I think it would be more satisfactory. 

21. Sec. 3. That the locators of all mining locations heretofore made, with 300 feet on 
each side of the vein or lode, or which shall hereafter be made on any mineral vein 
lode or ledge situated on the public domain, their heirs and assigns, where no adverse 
claim exists at the passage of this act, so long as they comply with the laws of the 



620 PUBLIC LANDS. 

United States, State or Territorial, not in conflict with said laws of the United States, 
shall have the exclusive right of possession and enjoyment of all the surface included 
within the lines of their locations, and of all veins, lodes, and ledges throughout their 
entire depth, the top or apex of which lies inside of such surface lines extended down- 
ward perpendicularly; and provided further, that nothing in this section shall authorize 
the locator or locators, possessor or possessors of a vein or lode which extends in its 
downward course beyond the perpendicular lines of his or their claim to enter upon 
the surface or under the surface of a claim owned by another or others. 

22. I think five years is long enough. No locator or locators should be allowed to 
locate more than four claims of mineral land on the public domain. I have known 
men to locate from 20 to 100 claims in one district, thereby keeping men out of claims 
that would work them. Claims should not be cut down below 1,500 feet long, with 
300 feet on each side, side lines parallel with the general course of the vein. 
I remain, very respectfully, your obedient servant, 

J. C. COONEY, 
Fort Bayard, N. Mex. 



Testimony of N. J. Hall, Colfax, N. Mex., on agriculture and timber lands. 

The questions to which the following answers are given will be found by unfolding 
page opposite page 1 : 

1. Cattle raising. 

2. Have lived in the county of Colfax, Territory of New Mexico, eleven years. 

3. Have taken steps to acquire title to the public lands of the United States by 
homestead and pre-emption. 

4. None. 

5. My personal experience has been, I have not received a title yet, after the expi- 
ration of over a year since the receipt of duplicate. Expenses of procuring pre-emp- 
tion title, $72. I know of parties who have received duplicates over two years ago, 
and have not received patents yet. I do not know of any contested cases. 

6. Yes. In the great distance we are removed from the land office, making it diffi- 
cult and expensive to reach it, and rendering it almost impossible to get there to make 
final proof in case of sickness or lack of means. Kemedy, allowing final proof to be 
made before a justice of the peace or notary or other officer qualified for the purpose. 

7. Public land in Colfax County is pastoral altogether in the eastern part of the 
county, with but little timber, with some agricultural and mineral land in the western 
part. Western part mountainous ; eastern, plain cut with some canons. 

8. By general rule, in agricultural land, of water sufficient for irrigation. 

9. Think that the surveys had better follow the canons and streams, as the land 
outside is utterly worthless for farming and hardly worth paying taxes on at 10 cents 
per acre. 

10. Allowing the homestead and pre-emption laws to remain as they are, and selling 
the pastoral lands adjoining homesteads and pre-emptions to actual settlers at a low 
figure. 

AGRICULTURE. 

1. Climate, dry; temperature moderate ; rainfall very light ; length of seasons for 
farming not to exceed five months ; snow-fall in the winter very light on the plains, 
heavier in the mountains. Supply of water for irrigation very limited, all being sup- 
plied from small springs ; think not enough east of the Maxwell land grant to irrigate 
2,000 acres. 

2. Generally June and July, and this in showers, as we hardly ever have a general 
rain. The supply does not come when most needed for irrigation. 

3. None. 

4. One acre in one thousand. 

5. Wheat, oats, corn, and vegetables. 

6. Cannot say, as I have never made any trial. 

7. Spring entirely. 

8. Think the irrigation injures the soil to the extent of destroying its fertility in the 
end — the irrigation from springs. None so high but crops can be raised on it, if tilla- 
ble land, and some crops succeed better at a high altitude. 

9. There is no water returned to the streams in this section. 

10. All the water has been taken up under the homestead and pre-emption laws, 
where surveyed. 

11. None. 

12. All except what can be irrigated. 

13. No ; without there is living water, and then under the present homestead law, 
with the privilege of buying more around it at a low figure. 



PUBLIC LANDS. 621 

14. Yes ; if it could be put at a price not to exceed 15 cents per acre. No ; but give 
every settler the first chance to buy the land adjoining him. 

15. Full fifty acres ; fully up to the average. 

16. Three hundred head. 

17. About seven or eight. 

18. Yes. 

19. Yes ; in part. They can, if not overstocked. 

20. Yes. 

21. Springs and standing water. 

22. Two, as they tramp out more than they eat. 

23. It has diminished, and in many places entirely disappeared. 

24. The cattle will leave without they are compelled to stay ; if compelled to stay, 
will die. 

25. There is a party feeling between them, but no conflict ; but there is a liability 
for one at any time. 

26. Cannot say ; sheep from two to four thousand ; cattle run loose. 
28. No, as it has just been surveyed. 

TIMBER. 

There is but very little in the east end of the county. 

Think there ought to be some rigid law in regard to setting on fire timber or prairie 
land. 
No mineral lands in this part of the county. 

N. J. HALL. 



Testimony of William Lee Thompson, merchant and farmer, Upper Membris, Grant County, 
N. Mex., relative to agriculture and timber lands. 

The questions to which the following answers are given will be found by unfolding 
page opposite page 1 : 

1. William Lee Thompson, merchant and farmer, Upper Membris, Grant County, 
New Mexico. 

2. Some thirty years. 

3. The land I now live on, under the homestead act. 

• 5. Cost for advertising, $10 ; traveling expenses, 100 miles, $50 ; 160 acres homestead 
in full, fees, $42; total, $102. 

6. The enormous amount of writing and advertising should be done away. 

7. Very little agricultural, mostly mineral and pastoral lands. 

10. I would suggest that the small valleys in these Territories be immediately sur- 
veyed, so that actual settlers can obtain title. I believe no other lands should be 
surveyed. I notice most of surveys made in this Territory have been made on barren 
plains of no earthly use for any purpose (very easy to survey). 

AGRICULTURE. 

1. Climate fine, very little rain or snow ; frost comes October 18 to 25 ; we farm it 
all winter. 

2. December, January, and July. 

3. None. 

4. About not one acre in 5,000,000. 

5. Corn, wheat, barley, and oats, and garden vegetables. 

7. Some small creeks and the Big Grande, which is dry now for some 300 miles. 

8. Irrigation enriches the land, leaves a sediment. About 6,000 feet. 

9. Three-fourths taken up, balance goes to the streams. 

11. No legal conflicts have as yet arisen. 

12. No lands have been entered for pasturage, as no law would give enough. 

13. Six hundred and forty acres is a very small farm for a pasture for a very small 
family. 

14. Not limited. 

15. Five acres, about, for this Territory. 

16. One hundred and twenty head. 

17. One. 

18. About the same. 

19. No fences ; no fences here. 

20. They would not. 

21. From springs and creeks (very scarce). 

22. Seven. 



622 PUBLIC LANDS. 

23. Grass does best with cattle. 

24. They do here, but to advantage. 

25. No conflicts as yet. 

26. One hundred to five hundred cattle ; 100 to 2,000 sheep. 

28. Seldom a survey can be traced here ; surveying is very poorly done. 

TIMBER. 

1. No timber within 12 miles. 

2. Cottonwood and willow chiefly for fences ; 20 miles up the stream some scrub 
pine grows, which are used for' houses. 

3. All timber lands are needed for the settlers. 

4. No real timber lauds in this section. 

7. I am in no way interested in timber cutting, but believe any one who will manu- 
facture lumber in this county is a benefactor. 

8. They cut for real needs of settlers. 

9. Any suit commenced against anyone for cutting timber would be a public damage. 



Testimony of George Gray, of New York, N. Y., relative to the public lands and surveys. 
Before the Public Land Commission, Washington, December 11, 1879. 

ABSTRACT OF POINTS PRESENTED ORALLY BY GEORGE GRAY, COUNSELOR AT LAW. 

1. The present system of surveying the public lands has been in operation three- 
quarters of a century. It is "the American system." It has the confidence and appre- 
ciation of the people. It is simple, certain, and precise. It avoids that most harass- 
ing and fruitful source of litigation arising under all other systems — namely, conflict 
of boundaries. It is the best system that can be devised to meet the wants of an 
agricultural people, which the Americans pre-eminently are and are to be. 

2. The region west of the one hundredth meridian, or the Missouri River, and north 
of the forty-fifth parallel is agricultural, mineral, or timber land. These agricultural 
lands do not anywhere require irrigation or special treatment to render them produc- 
tive. The mining laws require amendment to give precision to claims and certainty 
to titles. This can, to a great extent, be accomplished by confining rights below the 
surface to perpendiculars from the superficial boundaries. The present system of sur- 
veys is well adapted to the timber lands. The land-laws should be so amended as more 
effectually to protect the timber lands from spoliation under cover of homestead and 
pre-emption entries. This, with persistency in the efforts now made by the Interior 
Department for the preservation of the timber on the public lands, is all that is re- 
quired. Sales of timber or of lands chiefly valuable for timber, may be as advantage- 
ously made, for the purchaser and the government, under the present system of subdi- 
vision as any other ; but such sales should be to the highest bidders or at an approved 
valuation. All agricultural lands should be open for sale by private entry, in quanti- 
ties not exceeding one section, and until so entered they should remain subject to 
occupation and settlement under the homestead and pre-emption laws. 

3. Through the region above outlined the Northern Pacific Railroad is being con- 
structed. From the Missouri River, in Dakota, to the Yellowstone, in Montana— about 
220 miles — the road will be completed and in operation in 1880, and within the same 
time about the same length of road — from the Columbia River, in Washington Terri- 
tory, to Lake Pend d'Oreille, in Idaho — will also be completed and in operation. As 
an evidence of the perfect adaptation of the present system of surveys to the wants of 
the people, and of their confidence in its certainty and security, it may here be stated 
that, in anticipation of this early completion of those two divisions of the railroad, 
many hundreds, or rather thousands, have already settled on the agricultural lands 
within the limits of the grant. Where the lands are surveyed the government reserved 
sections are occupied to as great an extent as are the alternate odd sections. Where 
the lands are as yet unsurveyed the settlers are opening farms with equal feeling of 
security, since the railroad company offers all agricultural lands in the odd sections 
west of the Missouri River at the uniform price of $2.50, cash, per acre to actual set- 
tlers ; so they are fully protected whether afterward they are found to be on odd or 
even numbered sections. The present system of surveys is well understood, and it 
fulfills every requirement. 

4. The Gulf States containing public lands are, like the region north of the forty- 
fifth parallel, adapted for agriculture, and both regions are alike capable of sustaining 
large populations. 

5. The intermediate belt embraces vast extents of fertile lands, bountifully supplied 



PUBLIC LANDS 623 

•with all natural sources and means of productiveness ; but in certain other portions 
of this central region, while the population, if any, continues sparse, surveys will not 
be required for some time. Persons engaged there in cattle raising have the free use 
of the public lands for grazing purposes, and the government is not thereby a loser ; 
and every one employed in the business having the necessary qualifications can have, 
under existing laws, 160 acres of land for cultivation, the title to which he can obtain 
when the surveys are made. 

6. So long as there remain, as there are, large areas of the public lands naturally 
suitable for cultivation — not requiring irrigation or other artificial expedients to ren- 
der them productive and involving the expenditure and investment of large capital — 
the question of how to survey or dispose of the " arid desert " is not now a practical 
one. But even as to the desert lands, the present system of surveys by fixing standard 
parallels, base and meridian lines, will give established points of departure for sub- 
divisional surveys when required. The extension of the system to this extent over the 
plains will be necessary in due time for the continuity and completion of the geograph- 
ical survey of the country. 

7. The present system of surveying the public lands was adopted after the Louisiana 
purchase, and was not designed for the Atlantic States merely. It was founded in 
wisdom and forethought, perfected in over seventy years of practical operation, and 
has grown into the very life of the people. It has aided in giving happy and prosper- 
ous homes and honorable means of livelihood to millions, as it will to the hundred 
millions of citizens who are to occupy the western portion of the United States. There 
seems to be no sufficient reason for revolutionizing the system which has given and 
is capable of giving such results. 

GEORGE GEAY. 



Testimony of J. W. Belknap, farmer, Lake County, Oregon, on agriculture and timber. 

The questions to which the following answers are given will be found by unfolding 
page opposite page 1 : 

Gentlemen of the Public Land Commission : 

I have before me questions directed to me with request to answer the same, which 
I will so as far as I am able. 

1. J. W. Belknap, Summer Lake, Lake County, Oregon. Am engaged in stock-rais- 
ing and farming. 

2. I have lived in Lake County five years ; in the State of Oregon thirty-one years. 

3. I tried to acquire title to land under the pre-emption laws, but failed on account 
of not being able to make the payment as required by law. 

6. I have observed defects in the public-land laws. 

7. The public lands in this country are mostly mountains, fit only for pasture and 
timber. Perhaps one-hundredth part of the land is fit for agricultural purposes. 

10. I think actual settlers in the mountain regions, where the land is principally pas- 
toral, should be allowed more land than is allowed by existing laws. 

AGRICULTURE. 

1. The climate cold in winter and changeable in summer. Supply of water for irri- 
gation moderate. 

2. The rainfall occurs between the first of November and the first of May in the 
winter. There is but little rain when most needed for irrigation. 

3. About one-half of the land cultivated requires irrigation. 

5. Wheat, barley, and oats are the principal crops. 

6. About 200 inches of water will irrigate one hundred acres of wheat. 

7. The water that could be applied to irrigation is mostly small creeks or spring 
branches coming down from the mountains. 

9. In my section, water has not been taken np to any extent. Settlers claim the 
water that runs through their land ; will not allow it taken out unless returned to the 
channel before entering their land ; do not know under what law it is claimed. 

12. About three-fourths. 

13. It is ; each settler should have not less than 320 acres. 

14. If these lands were put in the market, the quantity to each purchaser should be 
limited. 

15. From 3 to 4 acres. 

18. The growth of grass has diminished. Think there is about 150 head to the 
square mile. 

19. Cattle owners do not fence their range; think they could be confined with 



20. Yes. 



624 PUBLIC LANDS. 

22. Ten head of sheep are equal to one beef ; diminished the same as land pastured 
■with cattle. 
24. No, not to any extent. 
28. There is some trouble in finding corners ; they are not properly marked. 

TIMBER. 

1. There is abundance of timber, mostly yellow pine ; very poor for general pur- 
poses. 
3. By sale ; do not think it should be higher than agricultural land. 
5. There is a second growth of same character. 

7. There has been no unnecessary waste of timber to my knowledge in this section. 

J. W. BELKNAP. 



Testimony of S. Coffin, register, and Caleb N. Thornburg, receiver, United States land office, 
Dalles, Or eg., relative to agriculture and timber, lode and placer claims. 

AGRICULTURE. 

1. Mild and healthy. Eainfall principally in fall, winter, and spring. Snow in Jan- 
uary and March. Irrigation not generally needed. 
3. A greater portion. 

5. Very little irrigation needed. 

6. Don't irrigate wheat. 

8. Crops are raised at a high altitude. 

12. Over one-half. , 

13. Yes ; six hundred and forty acres. 

14. No. 

16. About one hundred and fifty head. 

18. Diminished. 

19. No. 

21. Various streams. 
*23. Diminished. 

24. No. 

25. Many disputes, but nothing serious. 

27. All road companies who have lien lands should be compelled to select them and 
let the balance now withdrawn be opened to settlers. If any grants to railroads, 
such as to North Pacific, are extended, the lands should be sold to actual settlers at 
$1.25 per acre in entire quarter sections only, and the money placed to the credit of 
such companies. 



28. Yes. 



TIMBER. 



1. Principally pine, fur, and oak. Cannot well estimate the proportion of timber 
land ; but say one- twentieth. 

2. Locust and poplar. Think pine, fir, and oak would do well. 

3. Sell under the present law. 

5. Young timber starts immediately and grows thriftily. 

6. Generally started by carelessness of Indians. 

7. Timber depredations in this district not extensive ; principally by settlers for 
necessary fuel and for fence and building purposes. 

9. Place the guardianship of timber lands in custody of United States district land 
offices, with power to arrest, &c. 

LODE CLAIMS AND PLACER CLAIMS. 

There are but few mining claims in this district. We have not had any experience 
in mining-claim entries. 
Respectfully submitted. 

S. COFFIN, 

Register. 
CALEB N. THORNBURG, 

Receiver. 



PUBLIC LANDS. 625 

Testimony of George B. Currey, lawyer, Canyon City, Grant County, Oregon, on agricultural, 
pasturage, and timber lands, mining laws and claims. 

Canyon City, Grant County, Oregon, 

January 15, 1880. 
Public Zand Commission, Washington, D. C. : 

Sir : A circular containing numerous interrogatories concerning the operations of 
the United States land laws by some means has found its way to my table. 
In response to first series of questions, by number, I answer as follows : 

1. My name is George B. Currey ; by occupation, lawyer. 

2. Have lived in Oregon 26 years. 

3. As attorney I have had something to do in procuring titles for clients of nearly 
every grade of land — agricultural, saline, mineral, homestead pre-emption, and desert. 

In answer to question 6, 1 say : 1. The rights of administrators or executors is not 
clear as to homestead claims where no heirs enter and take possession of the claim, 
leaving it questionable if administrators can perfect title. 2. In most new countries, 
where land districts are large, it works a hardship to compel pre- emptors to appear in 
person to make final proof. There ought to be some means inaugurated whereby the 
distance between the Department of the Interior and the Department of Justice could 
be abridged. The effect of the present encasement of each department in its own pe- 
culiar shell renders perjury in making entries and final proofs under homestead, pre- 
emption, desert, and timber-culture laws a thing of easy and safe accomplishment. 
Eich men constantly are in the habit of procuring the service of their hired men to 
take up claims, perfect title to parts of the public domain, and then transfer to their 
employer. A law prohibiting the transfer or lease of a pre-emption claim for, say, 
five years after receipt of patent at the local land office might have the effect to stop 
the present practice. 

7. This is a mountainous country. It has a considerable amount of mineral, gold, 
and silver lands; about one-tenth of the surface plowable, the remainder high lands, 
cut up with steep canons and rocky ridges, good for grazing purposes. There is a tim- 
ber belt following the trend of the Blue Mountains, about fifty miles wide and hang- 
ing on either side of the summit ridge. 

No geographical division would classify the lands of this country. The classifica- 
tion must be made, if made at all, from the qualities of the land as found upon ob- 
servation made with intelligent and honest eyes. 

The present system of surveying will produce a more satisfactory means of desig- 
nating lands than any other. Township the whole county, sectionize the timber lands 
on the lower rim and adjacent settled valleys, and as applications are made to pur- 
chase subdivide. The high lauds had better be held for some years subject to the 
homestead and pre-emption laws. 

Any scheme to lease or otherwise dispose of the grazing lands will retard the settle- 
ment of the country aud keep out actual homestead and pre-emption settlers, while 
those who obtain possession of the grass lands will stock the same to their uttermost 
capacity, aud in a few years, after having rendered it worthless, throw up their lease 
and abandon the country, denuded of grass and timber, a sterile waste, where no man 
•can make a living until years of recuperation have intervened. 

If held subject to homestead and pre-emption, lands which are now held in the esti- 
mation of the local population worthless, as immigrants crowd in will be found not 
only desirable, but valuable. 

There is, in my opinion, no better way, both for government and people, than the 
homestead laws, with some better guards against loose swearing. 

This is a dry climate. The annual waterfall, including snow and rain, does not ex- 
ceed 12 inches annually. The air is very arid. The greater part of the rain falls in 
early winter and spring, with intervening snow. The supply of irrigating water is 
from the melting snow in the high mountains. 

It is now thought that no part of this county will produce any crops without irriga- 
tion. This, I think, is a mistake, as I am satisfied that good crops of fall-sown wheat 
and rye can be raised on the uplands having a hard-pan or clay substratum. 

There is but a very small proportion of this county that can be irrigated on account 
of its altitude above the beds of the creeks. Wheat, oats, barley, corn, and garden 
vegetables of most kinds are grown here with satisfactory yields by aid of irrigation. 
My experience is that unless the subsoil is clay, irrigation soon drains or leaches by 
percolation the fertility out of the soil. It will take about 100 inches of water, miners' 
measurement, to irrigate 100 acres of wheat ; if the soil is loose and based on gravel 
it will take much more. 

Very little water returns from the irrigating ditches to the original streams ; it is 
absorbed by the soil or lost by evaporation. There is no statute of the State of Oregon 
changing the common law as to the appropriation of water. A sort of a local custom 
prevails here similar to the practice under the statutes of California. 

40 L C 



S26 PUBLIC LANDS. 

My judgment is that it is best not to put the lands on the market at private cash en- 
i5?y. The ingenuity of the law-makers can devise no effectual method of limiting the 
amount one man can procure with cash. 

The area of this county is so large and settlers so sparse that I have no means of 
Jorming an estimate of the space required to keep a single animal, but guess that a cow 
will eat all that grows upon ten acres in the course of a year. 

In the vicinity of settlements and stock ranches grass has diminished amazingly in 
the past five years. 

Cattle-raisers here do not fence in their range. 

Sheep and cattle will not graze on the same ground. The stench from sheep is re- 
pugnant to the cattle, and they will not remain on the ground over which sheep have 
passed. 

Sheep and cattle men have thus far in this county got along without doing much 
more than to curse each other and make some threats. Killing will commence next 
spring. As far as finding the marks, mounds, stakes, and stones of the United States 
deputy surveyor who surveyed this county, the thing cannot be done. This country 
was surveyed on paper, with just enough field work done to keep jobs from overlap- 
ping. No settler ever pretends to know where a corner is or ever was. Private sur- 
veyors who keep certain starting corners up are relied upon to find out where the 
United States deputy surveyors ought to have put the corners. 

The forest timber of our timber belt is pine, fir, tamarack. Along some of the creek 
©ottonwood, alder, and birch may be found. 

The mining laws for the disposition of placer and quartz lodes are rather complex, 
out seem to give satisfaction. 

I would suggest that there might be some limit to the number of claims one man can 
take up under the United States mining laws. 
Very respectfully, 

GEO. B. CURREY. 



Testimony of Lyman L. Hawley, stock-raiser, Silver Lake, Lake County, Oregon, relative to 
swamp land, pre-emption and homestead claimants, homestead law, pre-emption law, lands, 
grazing lands, and agriculture. 

To the Public Land Commission : 

1. Lyman L. Hawley ; am a stock-raiser ; have lived in the State twenty-six years, 
in the county seven. 

3. I have applied for State title to 200 acres of swamp land. I don't feel sure that 
$ will ever get it, as I don't believe the State has located it according to United States 
land laws. 

5. The expense on uncontested land is just what the law prescribes as fees and val- 
ues. On contests with the State in swamp-land cases, United States pre-emption or 
homestead claimants, the expenses have been heavy and decisions delayed, and the 
whole of the business very detrimental to the actual settler. Other contests are set- 
tled promptly with little expense to parties. 

6. I would say that the homestead law should be so amended that the settler could 
acquire title to as many locations as he lived full required time on, and abolish the 
pre-emption law. There is a class of people who keep on the frontiers all their lives, 
and should be provided with a home as often as they choose to move ; they are the 
only people fit to make the first improvements and fit the country for a more dense 
population. 

7 k I will confine my remarks to this county, which is made up of lake basins with 
low mountains covered with a poor quality of pine timber ; there is some swamp land 
on nearly all streams that empty into the lakes, and two or three large marshes could 
I>e drained. There is a small portion of agricultural, a much larger pastoral, and still 
larger part is timber and worthless desert. The timber will never have other than 
local value. 

8. The character of lands can only be ascertained by the surveyors. 

10. Land in this section being principally grazing should be leased in lots of from 
one to ten thousand acres for twenty years at a time for a small sum; at the expira- 
tion of such lease, if not applied for by settlers, re-lease it to the same parties. 

AGRICULTURE. 

The climate is cold and frosty ; rainfall is light ; snowfall in winter is sufficient to 
supply water for irrigation. The snowfall is from November to March. 

3. A very small proportion. 

4. There are some large tracts of sage-brush land that may be cultivated by irriga- 
tion. 



PUBLIC LANDS. 627 

5. Small grain and hardy vegetables. 

7. The supply of water is abundant. 

10. There is little State law on water rights ; all water must be used or returned to 
its natural channel. 

13. If homesteads are made on pasture land in this section they should contain at 
least 5,000 acres. 

14. If lands are placed in market the sale should not be limited, as speculators will 
find means to purchase what they want. 

15. It will take ten acres of irrigated or farming land or 50 acres of pasture land to 
make sufficient grass for a beef. 

16. A family could be supported with 100 head of cattle if we could get title to lands 
and improve the same ; as it is, the best is very risky. 

17. About sixteen. 

18. Diminished. We have had too much stock. 

19. Good pastures for winter would be a great help to the stock-raiser. 

20. Yes; decidedly. 

21. Plenty. 

22. Eight head. 

24. Yes, if cattle are not wild. 

25. None exist. 

26. Cattle are owned in bands as large as 3.000 head ; sheep are herded in bands of 
2,500. 

28. The corners were never set according to law, and are hard to find and determine. 

TIMBER. 

8. We take all we want for improvements. The timber that is cut belongs to the 
man who cuts it. 

9. No ; not in this section. We would take what we needed anyhow on the coast. 
Where timber has a commercial value it might be better to place it in the hands of 
said officers in order to stop milling on government lands. 

LODE CLAIMS. 

None. 

I humbly submit these few points to your consideration without argument or reason 
for want of time to write more. 
Yours, 

LYMAN L. HAWLEY, 
Silver Lake, Lake County, Oreg* 



Testimony of D. D. Hunger, farmer, Jordan Valley, Baker County, Oregon, on agriculture 

and timber. 

The questions to which the following answers are given can be found by unfolding 
page opposite page 1 : 

1. My name is D. D. Munger ; residence, Jordan Valley, Baker County, State of Ore- 
gon ; am a farmer. 

2. Have lived on this 1 coast over thirty years ; in Oregon twenty-two, and in this 
valley fourteen years. 

3. I sought to acquire title to 160 acres of land in this State about sixteen years ago 
under the pre-emption laws, but when I appeared at the land office, 80 miles distant, 
I was informed by the register and receiver that the land I wished to pre-empt had 
been withdrawn from disposal two or three days previous to my arrival at the office; 
and again in February, 1874, I made application for a homestead on the land that I 
have been living on for over ten years, but the receiver at Linkville rejected my appli- 
cation, as well as other applications, for the reason that I had a settlement on the land 
prior to survey, but advised me that I had a right to file a pre-emption on my land 
claim, which I did; but afterwards one of my neighbors wrote to the Commissioner of 
the General Land Office respecting the rejection by the receiver of our homestead 
applications, and the Commissioner reversed the decision of the receiver, who then 
advised me that I could change my pre-emption filing to a homestead entry, which I 
subsequently did. 

4. I have been deputy county clerk of this county for the last six years, and have 
prepared homestead and pre-emption papers for nearly all the claimants in this part 
of the county. 

5. As to this question I cannot answer correctly, as there have been no titles to pub- 
lic lands perfected in this part of the county, although one of my neighbors attempted 



628 PUBLIC LANDS. 

to make final proof of his homestead entry before the judge of our county court (which 
is a court of record), and sent a notice to that effect to the officers of our land office at 
Lake View to have it published, but the register informed him that he could only 
have the evidence of his witnesses taken before the judge, but would be required to 
appear in person at the land office to make his final proof, which decision, I think, is 
not consistent, according to the act of March 3, 1877. 

6. I see no provision made to carry out the act of March 3, 1879, for having notice 
published for final proof of a homestead or pre-emption being made at any other place 
except the land office in case parties living at a great distance from such office, or 
from bodily infirmity, or other good cause, wish to make it before a judge or clerk, as 
contemplated in act of March 3, 1877. There are many settlers living at a great dis- 
tance from their local land office, and in this and other new countries they frequently 
live a long distance from their county-seat, as in our case. We live over 200 miles 
from our local land office and over 160 miles from our county seat, and in most cases 
the roads to these places pass over an unsettled, mountainous country, many times 
unsafe to travel over during the winter snows or spring floods, and the traveler at any 
season of the year is liable to meet with roving bands of hostile Indians ; and as there 
is no law to compel the attendance of witnesses in case a claimant wishes to make 
final proof on his homestead or pre-emption, or in a contested case, it is liable to sub- 
ject the applicant for a homestead, claimant or contestant, as the case may be, to 
great dangers and inconvenience, and to a heavy expense ; and as the settler is liable 
to be poor, it might cause him to lose his land. I would therefore suggest that the 
act of March 3, 1877, "to amend section 2291 of the Eevised Statutes of the United 
States, in relation to proof required in homestead entries," be so amended that where 
a claimant for a homestead, pre-emption, or other class of lands is prevented, by rea- 
son of distance, bodily infirmity, or other good cause, from personal attendance at the 
district land office, that the final proof required of the claimant, or any testimony 
required in a contested case, or any affidavit or testimony required under any of the 
land laws of the United States, may be taken before any judge or clerk of a court of 
record of the county in which the land is situated, or before any notary public resid- 
ing in such county, such affidavit or testimony to be certified to under seal. Pro- 
vided, further, that where such claimant, contestant, or an applicant for a homestead, 
from a like cause, is prevented from personal attendance at the district land office, and 
also from personal attendance at the county seat of the county in which such land is 
situate, such affidavit or testimony may be taken before a justice of the peace of said 
county, duly certified to by such justice, whose official character and genuineness of 
signature should be certified to under seal. 

I Would also suggest that the act of March 3, 1879, entitled "An act to provide addi- 
tional regulations for homestead and pre-emption entries of public lands," respecting 
the publication of notice of intention to make final proof, be so amended that such 
notice shall designate the place where, as well as time when, such proof will be made, 
and that there be proper blanks prepared for cases where such proof is to be made at 
other places except at the land office. 

There are large amounts of land in the United States which have been granted for 
various purposes which have not yet been selected by the grantees; and as they are 
paying no taxes on them, but the pioneer who is making these lands more valuable by 
making valuable improvements in proximity to them, and are required to pay taxes 
to help support the government which protects these lands, and while these lands are 
not selected, it retards the settlement of the country. I would therefore suggest that 
where any lands may have been granted to any State, Territory, corporation, institu- 
tion, or otherwise, for the benefit of any railroad, wagon-road, or other improvement, 
and where such lands have been surveyed, and where such rights have attached, that 
such grantee or grantees be required to select such lands within two years ; but where 
such rights have not already attached, or where such lands have not been surveyed, 
then within two years from the time such lands are surveyed and such rights have 
attached ; but if not selected within such time they shall be subject to disposal by the 
United States under the same rules and regulations as other lands under either the 
pre-emption, timber, desert, or any other land laws of the United States in force at the 
time of disposal, whereby such disposal is for money ; provided, however, that all 
moneys paid to the United States for such lands shall be subject to the order of such 
grantee or grantees after deducting expense of sale and all other necessary expenses, 
but at any time prior to the disposal of such lands as provided they may be selected 
by such grantee or grantees, or by their legal representatives, and that all lands which 
may be hereafter granted in aid of any railroad, wagon-road, or other improvement, 
and not selected within two years from the time the land is surveyed and the rights 
of the grantee have attached, shall revert to the government, and that the records of 
all land offices of districts within which any such lands are situated shall show when 
such lands as have been already granted shall have become subject to disposal as pro- 
vided, and also when lands which may hereafter be granted shall have reverted to the 
government. 



PUBLIC LANDS, 629 

The act to encourage the growth of timber on the western prairies only allows one- 
fourth of any one section being taken under it, whereas the homestead law allows the 
entire prairies not otherwise appropriated to be taken as homesteads. I would by all 
means encourage the growth of timber and allow all prairie lands to be taken under 
that act under proper restrictions, for timber is the great need of the prairies. 

7. I live in the southeastern portion of the State ; have traveled over a great portion 
of the State. The Coast and Cascade ranges of mountains (which are generally heavily 
timbered with pine, fir, cedar, &c.) run the entire length of the State parallel with the 
coast, with the valleys of the Willamette, Umpqua, and Rogue Rivers between them, 
besides various smaller valleys on streams running from these mountains. The foot- 
hills and parts of the valleys between the Coast and Cascade ranges of mountains are 
covered more or less with oak, pine, fir, cedar, and various other kinds of timber, well 
watered, and the valleys are a good agricultural and the hills are a good pastoral 
country, but pretty badly eaten out by sheep. Some gold placers and some gold and 
silver bearing rock, and in the Coast range some iron ore and coal and copper. In the 
northern half east of the Cascade range is the Blue Mountain range, running northeast 
and southwest across Eastern Oregon, which are generally heavily timbered with pine, 
fir, cedar, tamarack, &c, with some gold in places along some of the streams and some 
gold and silver bearing rock. Between the Blue and Cascade Mountains and the 
Columbia River, on the north, is a triangular-shaped country, mostly table-land, des- 
titute of timber and covered with either bunch-grass or sage-brush, except the valleys, 
which were originally covered with rye or red-top grass. A good pastoral country, with 
some small valleys of rich agricultural land. A good many sheep, which have eaten out 
the grass so as to render it unfit for other stock. No mines, except a little gold in the 
sands of the Columbia River. 

East of the Blue Mountains, hilly, rolling, and mountainous, with some valleys of 
rich agricultural land ; timber on some of the mountains ; hills generally covered 
with good bunch-grass ; about the best pastoral part of the State ; in some placers, some 
gold and silver bearing rock. South of this country to Nevada line, rolling, hilly, and 
mountainous, with long stretches of plains varied with bunch-grass, sage-brush, grease- 
wood, alkali, rocks and sand, and on the hills and mountains bunch-grass, craggy 
rocks, and in a few places juniper timber, but no other; good grazing country con- 
sidering the amount of barren waste land, which is about two-thirds or three-fourths 
of the whole ; no mines, and but very little agricultural land; too much frost to raise 
fruit or tender vegetables. 

8. I hardly know what would be the best method. 

9. It might perhaps be a good plan that when settlers have settled in narrow and 
perhaps crooked valleys, bounded by hills, or mountains, or rocky plains, or alkali, or 
sage-plains, to have it surveyed so as to have the lines follow around the edge of the 
agricultural land as near as might be, but not to lose sight, however, of the sectional 
lines, as it frequently happens that a sectional and other lines run so that in order to 
get 160 acres, or perhaps less, of agricultural land, that a person is required to purchase 
eight or ten subdivisions. 

10. I have no suggestions to make on this head. 

AGRICULTURE. 

I. The climate in this part of the State is variable. In the valleys as a rule very cold 
at short intervals during winter, moderately warm in summer, but subject to frost ; 
no rain to speak of from first of May to first of November ; generally occasional rains 
in March and April and in November and December ; a little snow in winter, but in 
the high mountains much more rain and snow. Some years scarcely any snow or rain ; 
other years there is liable to be heavy and long rains in spring and autumn, and deep 
snows in winter. About enough water to irrigate what little agricultural land here, 
but in many instances rather expensive building dams and ditches to get the water 
where needed. 

2. Rain does not fall when most needed for irrigation. 

3. None in this portion of this State with success. 

4. Very little ; say from one-fiftieth to one one-hundreth part. 

5. Barley, wheat, potatoes, a little cabbage and roots. 

6. I could not tell even approximately. 

7. From various streams fed by springs and snows in the mountains. 

8. I do not think it has injured the land here at least. 

9. The party first appropriating the water has the preference for what his ditch will 
carry, if it needs that much. 

10. In some places all appropriated under the foregoing rule. 

II. None of account. 

12. From forty-nine fiftieths to ninety-nine one-hundredths, although, as I stated in 
an answer to the seventh interrogatory of first series, about two-thirds or three-fourths 
of the lands are nearly worthless for pasturage or any other purpose. ' 



630 PUBLIC LANDS. 

13. My judgment is that if any person wishes to establish a homestead on pasturage 
lands they should be permitted to do so the same as on other lands, and the* same quan- 
tity ; for if engaged in stock-raising they would naturally want a house to live in and 
some other improvements for their own convenience, and would want them on land of 
their own. 

14. I think that it would not be advisable to put the pasturage lands in market for 
private entry, for the reason that the stock-raising business is the principal industry 
in many parts of the country, as much of it is fib for no other purpose. It is now car- 
ried on to a great extent by men of small means, and the profits are divided among the 
many; the poor man would not be able to buy the land, whereas if the lands were 
subject to private entry they would be bought up by a few rich men, and stock-rais- 
ing would then be in the hands of the few, and the poor man would be forced to sell 
his stock for whatever the land owner saw fit to pay him, and thus he would be com- 
pelled to seek some other employment to gain a living, and the pastoral portion of the 
country would, to a great extent, become depopulated ; the land would necessarily have to 
be reduced very much in price to enable it to be sold, and would bring but a small rev- 
enue to the government in comparison to the injury it would entail on the small stock- 
raisers. The object is or should, be to frame laws so as to be of the greatest benefit to 
the greatest number. Where a country is settled by people who are carrying on busi- 
ness in their own right the country is more prosperous and the people are more con- 
tented and happy than where they are dependent on employment that others may see fit 
to give them ; and as a general rule, where a country is thickly settled and the property 
owned by the masses, there is a greater revenue to the government than where the 
same amount of property is owned by the few. I am no enemy to the rich man, but 
concede to him his just rights. 

18. Diminished to a certain extent. 

19. Do not fence their ranges ; could not with safety. 

20. I think not. 

26. According to assessor's report, cattle, 36,103 ; sheep, 18,949 ; horses and mules, 
5,812 ; but I think there are about 100,000 head, of cattle in the county. The county 
is about 200 miles long and 60 miles wide, and contains about 12,000 square miles, less 
than one head of cattle to the square mile. 

28. There is trouble in ascertaining corners. In many instances the original corners 
were of soft rock, which soon crumbled to dust ; and where there were mounds and 
stakes, cattle have rubbed down the stakes and tramped down the earth mounds, so 
that they are not visible, and most of the stakes are gone. 

TIMBER. 

1. None in this part of the State, but a little about 25 miles from here, near Silver 
City, Idaho. 

2. None planted here. 

3. I would sell timber lands to actual settlers only and in limited quantities. Say, 
for very best of heavy timber, such as redwood, 10 acres at $10 per acre ; good heavy 
timber of best quality, except redwood, 20 acres, at $5 per acre ; good timber, 40 acres, 
at $2.50 per acre; poor timber, 160 acres, at $1.25. I would think it best where. there 
are mines and mining towns to collect stumpage, and have pay for all the timber felled 
whether wasted or used ; and where there are large bodies of timber, and it is needed, 
have foresters appointed, and all timber cut under his instructions and superintend- 
ence. I think it would be a good plan to reserve one- half of the timber lands, where 
there are large bodies, for the future. 

D. D. MUNGER. 



Testimony of TV. S. Newby, farmer, Yamhill County, Oregon, on agriculture and timber. 

McMlNNVILLE, OREG., 

December 20, 1879. 

Dear Sirs : In reply to your interrogatives submitted to me, I would state that my 
name is W. S. Newby ; residence, McMinnville, Yamhill County, Oregon ; occupation, 
farmer and grain merchant. I have resided in this county since the year 1844 (or 
thirty-five years). 

I acquired title to 640 acres of government land in the year 1850 under the law 
known as the donation law of Congress in the year 1850. My knowledge of the prac- 
tical workings of the public-land laws has been from personal experience and obser- 
vation. 

The time and expense ordinarily incurred in procuring a title to public land in uncon- 
tested cases would be from three and a half to six years, at a cost of from $20 to $220 ; 
this of course depends upon the kind of land located and also under what law it is in 



PUBLIC LANDS. 631 

accordance with. As to contested land cases it would likely terminate as other legal 
cases ; the time and expense necessary to adjust the matter would be uncertain. I don'± 
just now call to mind an actual case of this kind containing anything important. 

In regard to the defects in practical workings of the land laws, I think upon thv 
whole, as far as the same has come to my knowledge, that they have been very wisely 
formed ; and with a majority of the honest class of people are quite satisfactory ; at 
least such has been the case throughout this section of country. 

The character of tbe public lands in this county (generally speaking), the soil is a 
dark rich loam, calculated to produce crops for many years successively without ma- 
nuring : at least such has been the case (or result) of many years of practical use of ad- 
jacent lands of a similar character throughout this county and in fact the Willamette 
Valley. 

I presume it safe to say that two-thirds of the public land in this county are pasto- 
ral and timber lands ; possibly more than one-third might be termed agricultural. 

I think that the government can ascertain and fix the character of the several 
classes of public lands in this and adjacent counties by a general rule ; this I think 
would be more satisfactory than otherwise. 

The present system of land parceling surveys, in my opinion, is well adapted to the 
majority of lands for settlement, as under the various general land laws settlers can ob- 
tain, as a rule, all the lands of either class desired. 

Tbe climate in this county, and in fact throughout the entire Willamette Valley and 
coast range, is quite mild, the warmest temperature seldom exceeding 100° in the shade, 
and the coldest weather never being more than an average of 6° below zero. Fall- 
sown wheat does splendid, of ten yielding from 45 to 54 bushels per acre, and it is a rare 
thing that the freezing weather injures the wheat crop. The usual time of year the 
rainfall begins is from the 1st to the 10th of October, and is liable to continue at 
intervals until about the first of to the middle of March, after which time we oftea 
have nice growing showers during the months of April, May, and June. 

It is a very rare thing to see the low lands covered with any depth of snow, and then 
not lasting more than from two to four days. 

Irrigation is a thing hardly known , and never employed by farmers ; consequently, w© 
may say that all of our lands can be profitably cultivated without irrigation. 

The highest hill- tops along the coast range have produced abundant crops whenever 
cultivated. 

The proportion of lands adapted to pasturage only, I think might be placed at about 
one-third of all. 

I should think the average amount of land required to raise one head of beef for 
market would be three acres ; this section compares favorably with other sections in 
this respect. 

I would think from three to four head of cattle sufficient to support the average 
family. 

Yamhill County contains 285,641 acres of land, 6,503 head of cattle, 20,837 head of 
sheep, as per assessment of 1879. Cattle-raisers usually fence a portion of their ranges 
at least. Yes, cattle can be confined safely on their ranges during the winter months 
by fencing. 

In grazing I think that four sheep are equal to one head of cattle. Sheep and cat- 
tle will not graze on the same land if left to choose their pasture. Horses will graze 
some with sheep. I think, as a general rule, the grass has diminished when it has been 
pastured by sheep. 

The supply of stock water is good in most localities — better, I think, than found in 
a majority of the stock locations. 

I don't think there would be any trouble in ascertaining the corners of the surveyed 
public lands in this county. 

The amount or proportion of timbered land throughout this section I would esti- 
mate at about two-thirds the entire public lands of this and adjoining counties. 

The timber in this county is principally fir, oak, ash, and alder, and as to quality 
will compare favorably with the timber in any country ; in fact, it is acknowledged to 
be of superior quality whenever tested. 

Usually when forests are felled there is a second growth of timber, which grows very 
rank, and therefore is quite frail when matured. 

As to the origin of forest fires, it is hardly possible to give you a definite answer, as 
there are various ways understood from which they might originate. 

Some years ago their destructiveness was much greater than of late years. I think 
as the lands are settled this difficulty will gradually grow less serious. I think these 
fires often occur from carelessness of travelers and hunters in leaving camp-fires t© 
take care of themselves, &c. 

As far as my knowledge goes, I don't think the depredations upon the timbered 
lands very serious, at least in this county; for of late years I am satisfied that persons 
are more conscientious about cutting timber on public lands for private purposes. 

I think it would be advisable and advantageous, for obvious reasons that will occur 



632 PUBLIC LANDS, 

to you, to place the timbered lands within the jurisdiction of the United States dis- 
trict land offices ; this surely would be more convenient to persons wishing to purchase 
and locate these lands. 

We have no mining claims or mining interests in this section of country ; conse- 
quently I am unable to give you any information in this direction. 

Hoping that in answering the questions submitted to me, this brief reply will be 
satisfactory, 

I am yours, truly, 

W. S. NEWBY. 



Testimony of L. S. Burnham, near Salt Lake City, Utah, relative to agricultural lands and 

lode claims. 

Salt Lake City, Utah, December 14, 1879. 
To the Public Land Commission : 

1. L. S. Burnham, 10 miles north of Salt Lake City ; farmer. 

2. Twenty-five years. 

5. Many fraudulent entries : vicious protests (frontier administration). 
10. Only desert land entries (greatly altered) ; too quick ; impossible. 

AGRICULTURAL LANDS. 

Never allow more than eighty acres of desert land filed on by one man and a fee of 
say $25, on conditions of reclaiming and inhabiting the same within three years ; prove 
the same and receive a patent fee, and we will have fifty times as much land reclaimed, 
fifty times as many agricultural homes, and twenty times as many school-houses. By 
all means give a government commissioner or commissioners to make personal examina- 
tion of all protests or disputes, ascertain the facts as by law, and correct any wrongs, 
save a thousand poor farmers, and a hundred thousand lawsuits. 

I have somewhat extended experience in this western world in farming, irrigation, 
and mining, especially mining lodes, for twenty-five years in Utah ; born in Vermont; 
lived there to manhood; farmed f " 
age ; five sons around me, farmers. 

MINING LODE CLAIMS. 

21. Alter the laws ; let all lode claims consist of not more than 1,500 feet length and 
not more than 1,000 feet in breadth ; surface measure horizontal, end and side lines 
vertical, with square corners ; possessory right ninety days to recording with district 
recorder (a county recorder) ; 120 days to survey and recording in district land office, 
if there be one, and one year to government purchase, or forfeiture, subject to relocation 
by any other party or parties under a new name. 

The above, as laws, would stop millions of loss in lawsuits, and stop a multitude of 
blackmailing, and open many valuable mines that are silent and shut down in quarrels. 
And give aforesaid commissioners jurisdiction over mineral as well as agricultural land 
disputes, with a salary, and never fees. 

I could post you somewhat on ranching, farming, mining, timber, water, irrigation, 
&c, but can't write as much as I can think. Congress need not bore artesian wells ; 
the above proposed desert land laws will bore one thousand wells to Congress one. 
Truly yours, 

L. S. BURNHAM. 



Testimony of William E. Hall, miner, Big Cottonwood, Utah, relative to agriculture, timber 

and lode claims. 

The questions to which the following answers are given will be found by unfolding 
page opposite page 1 : 

1. William E. Hall ; miner ; Big Cottonwood, Utah. 

2. Seven years. 

3. Yes, mining lands. 

4. None. 

5. There has been considerable unnecessary expense in getting public-land titles, 
because of defective laws. 

6. There are many defects ; have not time to write them. 

7. Mining. 



PUBLIC % LANDS. 633 

8. Geographical division. 

9. For mining, say, give each party 40 acres ; it would give plenty of room for every 
purpose connected with mining. 



1. Plenty of snow in winter. 
1. Not much ; pine. 



AGRICULTURE. 

TIMBER. 
LODE CLAIMS. 



1. Thirty-five years mining and mining superintendent. 

2. There are many defects in the United States mining laws ; have not time to answer 
them. 

4. 1 understand it to be the outcropping of the vein. By no means, no ; have known 
many instances of this kind. 

5. Parties so located ought to have time to determine the course of their vein. 

6. Yes, most decidedly ; great injustice. 

7. Yes ; many cases of this kind have come under my notice. 

8. Yes. 

9. No. 

10. Yes. 

11. To the disadvantage. 

12. Should not cloud A's title. 

13. Yes ; this is often the case. 

14. Yes. 

15. Yes ; Big Cottonwood. Partly miners, the rest citizens. 
J6. Local records and customs generally are unsatisfactory. 

17. Yes, by miners meeting. 

18. Yes ; none. 

19. Yes. 

20. Yes. 

21. A man should follow his vein wherever it went on his side lines 40 acres. 

22. No; yes; two years. 



Testimony of Joseph Hatch, Salt Lake City, Utah, relative to timber, timber laws, cutting of 
timber, destruction of timber , protection of timber, timber in the pasturage lands. 

Joseph Hatch, of Heber City, Utah, testified at Salt Lake City, September 17, 1879, 
as follows : 

I am acquainted with the timber country of the Wahsatch and Minto Ranges. As 
I understand the timber law, it does not allow parties to cut growing timber under 8 
inches. My opinion is that parties fire the timber to kill it, so that they can get dead 
timber for nothing. I think the timber land ought to be protected in some way, and 
that the timber law might be better administered if it was in the hands of district 
land officers. The timber is being very rapidly destroyed by fire. The next two years 
will clear the timber in the pasturage lands, if fires are like they were last year. The 
most of these fires are purposely set, so as to obtain the timber without violating the 
law. 



Testimony of Mason M: Hill, Salt Lake City, Utah, relative to lode claims. 

The questions to which the following answers are given will be found by unfolding 
page opposite page 1 : 

United States Public Land Commission : 
Gentlemen : Replying to your questions asked, I herewith write answers seriatim : 

1. I have had experience ill organizing mining districts, locating mines, superintend- 
ing developments, tracing and experting, buying and selling, and the business some- 
times attended with litigation, both for the companies for whom I acted and with 
myself personally. Places, California, Nevada, and Utah. From dates 1861 to 1864 
in the former States, and since 1864 until now in Utah. 

2. Seeming defects in the United States laws will be only briefly suggested in giving 
specific answers to succeeding inquiries. 

3. No overlapping surface claim should in any instance be accepted by surveyor- 



634 PUBLIC LANDS. 

generals so long as miners' records are permitted as having even a color of validity 
for evidence of possessory title. Any conflict involving "fee" title either to surface 
ground or lode should be adjudicated by a court of competent jurisdiction before any 
survey of a claim is accepted, or, rather, patent issued. 

4. The top or apex of a vein or lode is where it has been projected through the coun- 
try rock by an acting subterranean agency or force. Surface slides may cover it 
afterwards or obscure it so the "apex of vein " may be several feet from the surface, 
but still the " apex" where found incased in defined wall rock, or between two for- 
mations defined as a contact vein. 

The apex can be determined when found, but the course of the vein carefully de- 
fined means oftentimes expenditure of time and money. Its " angle or direction of 
dip" must be somewhat a matter of conjecture from any judgment based upon " early 
workings " of lode. 

5. I do not think "discovery rights" are or can be protected from encroachments or 
litigation by any location now made, but I suggest further legislation should compel 
discoverer to definitely define his discovery or claim. 

6. Some litigation and injustice have grown out of the impossibility to determine 
points above stated, but more on account of neglecting to determine them when it 
has been possible to do so. 

7. I have known of two seams parallel, located by different parties, giving rise to 
contests and litigation. 

8. I have learned in most instances afterwards deep mining developed a junction of 
the seams sometimes very low down in ledge. 

9. The outcrops of lodes are often wider than the present legal width of claims, 
whether located under United States or State laws. 

10. The outcrops very often deviate from a straight line, and sometimes pass beyond 
surveyed side lines. 

11. It may be used to advantage by discoverers of true lodes ; but, better still, I sug- 
gest allow greater surface width in survey for patent. This will prevent this privi- 
lege of location to be used to his disadvantage. 

12. B can, who has discovered nothing, cloud the title of A, and often extracts and 
carries away his ore before being traced out, and compels the discover often expen- 
sive litigation. The instances in Utah courts are too many to state or give particulars. 

13. The first question in query 13 I answer yes. To second I answer, " Legal at- 
tacks or invasion of discovery rights are about equally divided in being directed to 
dip of lode passing beyond exterior lines below surface," and in commencing mining 
work on surface ground exterior to located or patented lines, and prosecuting work to 
strike discovered ledge anywhere in its course down but away from main work or 
developments by discoverers. 

14. A provision by which locators can secure and quietly have what they discover they 
have a right to ask. The lode in its depths may be the most valuable or, indeed, all 
that is valuable in the discovery. Greater surface width at the option of the locator 
to prevent invasion of his discovery right should be given him legally, and if he fails 
to protect himself it will be his own fault. I disapprove any legislation that would 
stimulate mining work to secure valuable ore deposited in a lode at a low angle or dip 
in its course outside of the discovery rights to follow hanging and foot wall in the 
interests of the discoverer. The ledge is found in its depths by a surface discovery, 
and should not be parted in justice to the discoverer. Only another form of litigation 
would result by a mining x^rovision contemplating its possibility, viz : the acquiring 
rights by doing mining work with the end in view of segregating a lode linearly where 
its dip takes it out of its exterior surface lines. The ore body found means all of it, 
limited linearly only by end lines or stakes, and the United States limitation provision 
in this respect is only a fair provision of law. 

15. I answer, I have, both in Nevada and Utah, several of them. At Keese River, in 
Nevada and several districts in Utah, including the discovery and organization of Pa- 
ranagat district, in the extreme southern portion of the Territory, in the year 1865. 
The only officer generally was a recorder, and the only book a common blank book 
wherein to record claims. 

16. The mode generally has been to fix boundary limits to a district by some prom- 
inent natural objects : mountain passes or streams, or all combined, name district, 
take up ledges in mountains by following float ore or discolored seams on mountain 
sides, or mineral stained outcrops of country rock. The direction of the lode has been 
considered a reserved right of the discoverer to determine by after mining work as 
well as the dip or direction of lode in going down. His location notice has been gen - 
erally posted on ledge with supposed direction of vein according to compass points, 
and at same time left with district recorder, stating in what mountain or near what 
natural objects outcrop or notice may be found. In a majority of claims this prelimi- 
nary work has been done so imperfectly, these records would aid but little even in find- 
ing the lodes or veins they contain or describe. The effect of this imperfect record 



PUBLIC LANDS. 635 

location has been, however, to enable the real discoverer to hold his claims, oftentimes 
however with great difficulty. 

17. I can only suggest an amendment to all district records in the past by outlawing 
them in their present form. Some limitation act compelling a legal form of notice 
which would take all the valuable locations out of the old district record books, com- 
pelling denned lines and monuments or stakes showing claim boundaries, would prevent 
innocent purchasers from losing often in making investments hereafter. 

18. Answering this question, I have ; and only suggest as the most perfect security 
against frauds here to outlaw the record made in any mining locality, both those 
already made and those that may be hereafter made. Allow the miner, say, one year 
for such record to be thereafter verified and filed in a mineral land and lode record to 
be kept by register of the United States land office. 

19. The land offices are too few and oftentimes too distant for immediate record of a 
mining discovery. A quiet record, including district record with a mineral record, to 
be kept only at the United States land office, with legal forms and notices of locations 
and filings, are necessary. All mining locations to be finally entered at least within a 
year at the register's office, and claims subject to relocation by failure to do so. 

20. Mining controversies should not be left to United States land offices when title 
or legal acts or facts to be settled by a jury arise. 

21. I approve the legal provisions of the United States mining laws so far made. 
Amendments should be made including following suggestions : Work done on any claim 
sufficient to get a patent and buy surface rights ought to release, legally, owners from a 
yearly work assessment or expenditure. An additional time to secure patent there- 
after should be allowed, but time of possessory title limited for holding claim, unless a 
certified amount, say $5,000, has been so expended in development and necessary min- 
ing improvements without disturbing discovery title connected with a true following 
of vein in its dip. I would give additional surface rights, at the option of discoverer, 
with right to lodes undiscovered therein, confining him linearly to 1,500 feet, as now 
provided. 

22. A possessory title ought to be limited, but the extraordinary expenditure neces- 
sary to get a patent for mines of mineral lands should be so changed as to enable a poor 
miner to get his patent. In some instances it now costs from $300 to $400 to get a pat- 
ent for five or six acres of land on a mountain side. Locators, if compelled to patent 
claims, should be able to do so for a reasonable sum. United States surveyors are em- 
ployed by the miner to do his work dictated and controlled entirely by United States 
officers of the locality. Charging the miner for his time, those who pay not for it have 
the power to make a little work very expensive. It is done in almost every instance 
when application is made for a patent. 

I will extend statements and suggestions in answer to queries Nos. 21 and 22 when 
answering questions under head of placer mines in a letter which I will send you here- 
after, the same now having been omitted for want of time. 
Very respectfully, 

MASON M. HILL, 
Salt Lake City, Utah. 



Testimony of Charles TV. Stayner, attorney -at-law, Salt Lake City, Utah relative to home- 
stead and pre-emption laws, canals for irrigating, settlers' claims, desei^t land act, tim- 
ber and mineral lands. Land laws — amendments suggested. 

Salt Lake City, Utah. 

Gentlemen : As an attorney practicing in Utah, and having some experience in land 
cases, as well as some knowledge of the difficulties under which the settlers of this 
Territory have to labor, both as regards land and timber, I herewith present for your 
consideration a few suggestions which are the result not only of my own observation, 
but of others who have constituted me their representative in these matters. 

First. In regard to the homestead and pre-emption laws. I would respectfully call your 
attention to a memorial of the governor and legislative assembly of the Territory of 
Utah, approved February 22, 1878, and to be found on pages 168 and 169 of the printed 
laws, memorials, and resolutions passed at the last session of the assembly. This me- 
morial shows that settlers upon public lands in this Territory are " frequently dis- 
tressed by the lack of water for domestic purposes, or the brackish and unwholesome 
nature of the water there obtained from wells, until by the construction of canals for 
irrigation water is brought through such land suitable for general use ; " and the doc- 
ument proceeds to ask for legislation that shall extend to lona fide builders of canals 
and ditches the benefit of existing laws in such a manner that so much means or labor 
expended upon such canals may be counted equivalent to a given residence on the 
land under the homestead act ; proper and adequate proof to be given before the local 
land officers. I would urge your consideration of this subject as set forth in said memo- 



836 PUBLIC LANDS. 

rial, and also suggest that the legislation be extended to include settlers under the 
pre-emption act, and to provide that a portion of the money and labor expended on 
said ditches and canals be allowed to apply on the purchase-money for said land. I 
would further represent that, in numerous instances, settlers being compelled to make 
actual residence on their claims for at least six months, are put to the expense of build- 
ing a dwelling of some kind, and of moving their families oa to the tract, and during 
said period and until the land is paid for are limited for daily use to the unwholesome 
water that prevails on land impregnated with alkali ; that some do, when practicable, 
haul water in barrels from the settlements or from the nearest creeks ; that these set- 
tlers are subjected to this inconvenience and expense without any good resulting 
either to the settler or to the public, as in most cases, if not in all, the settler will, as 
soon as the six months expire, if possible, make his cash entry and immediately remove 
to a more healthy and comfortable neighborhood. He has in the meantime expended 
money and risked health, and in some cases life itself, to fill the law, and yet made no 
permanent improvement, except the cultivation of part of the land, which could have 
been done with greater ease and to a wider extent if the building and moving had 
not been required. 

I think that the making of irrigating ditches and canals, the building of fences, and 
a general improvement of the tract by cultivation, would result in far greater good to 
the settler and to the public at large than the building of a shanty which is removed 
as soon as the law will permit that made it a necessity. 

Furthermore, families are in many instances removed miles away from the settle- 
ments where they have congregated to protect themselves from Indians, and are com- 
pelled to live out on an open prairie where they are subjected to continual dread, rf 
not actual danger, and are deprived of medical aid in cases of sickness, which is at 
times quite prevalent here as elsewhere, especially among the children. The younger 
members of the family are also debarred from the advantages of school education, and 
thus lose months, and perhaps two or three years', schooling, owing to the poverty of 
the settler, who frequently cannot raise means to pay up for his land at the end of six 
months, and must remain a resident upon it till he can and does do so. His opportu- 
nities for raising the purchase money are also curtailed, through his being compelled 
to remain on the tract, as he is debarred from working for money, which he might do, 
were he permitted to retain his residence in the settlement. Thus his payment is re- 
tarded sometimes till the expiration of the allotted period of thirty months, and the 
government is a loser as well as the settler. The land is filed on by some other claimant, 
and the original settler is regarded as having abandoned and forfeited his pre-emption 
claim, notwithstanding his residence and his improvements, which may be very exten- 
sive and valuable. 

Secondly. In relation to the desert act. This law evidently should be modified so as 
to provide that when parties have expended a certain amount of means or labor in 
turning streams of water from their natural channels, in order to reclaim a tract, and 
have not at the expiration of the three years allotted thoroughly accomplished the re- 
clamation of the land as required, they may, on proper showing and proof before the 
local officers, obtain an extension of time to complete their work ; and, furthermore, 
some portion of their expenditure should in my opinion be allowed on the price of the 
land unless the general price under this act be reduced, which would be preferable 
and perhaps more just to rich and poor alike. In that case the price ought not to ex- 
ceed 25 cents at time of entry, and 25 cents additional at time of final proof, for in 
nearly all cases of desert land in this Territory the land is very inferior, and the ex- 
pense needed to reclaim it by irrigation is exceedingly heavy. 

Thirdly. I would call your honors' attention to the anomalous condition of this Ter- 
ritory regarding timber. Differently situated in many respects from other parts of the 
country, the agricultural classes, of which the inhabitants of the Territory principally 
consist, are suffering under the exacting provisions of laws made for other regions and 
for different objects from those which prevail here. On observing the visible mount- 
ain-sides, it is palpably manifest that no timber grows upon them, but in order to 
reach the timber or even fire-wood the settlers must go far into the recesses of the 
canons, and the spots where timber is usually found are frequently, if not always, out- 
side the limits of mining districts and of lands classed by the government as mineral. 
Consequently the cutting of timber and wood as generally carried on is not author- 
ized by but is in direct violation of the law authorizing residents " to fell and remove 
timber for building, agricultural, mining, and other domestic purposes," approved June 
3, 1878, which limits such privileges to mineral lands only; and the settler so using 
the timber is liable to criminal prosecution under section 2461, United States Revised 
Statutes, which was evidently passed to protect timber for the use of the Navy, and 
not in any manner to affect people in this inland Territory. 

These two laws should be so amended as to permit timber to be cut in our canons 
on lands other than mineral. I would also represent that a provision forbidding the 
cutting of timber measuring less than eight iuches in diameter, and contained in the 
rules and regulations issued by the honorable Commissioner of the General Land Office, 



PUBLIC LANDS. . 637 

is too general in its character, in that it may he construed to restrict the cutting of 
scrub brush which is only fit for fire- wood, and which never measures more than eight 
inches in diameter. This brush constitutes the principal fuel in some parts of the 
Territory, its removal is no injury to the timber required for other purposes, it would 
never grow into timber of any useful size, and yet the settler is unwittingly liable to 
harassing suits for an infraction of the United States law above referred to, or a pro- 
spective tax upon every load of such wood hauled by him, and which has cost him in 
labor on the canon roads, and in time spent in hauling it, all that the wood when 
hauled could possibly be worth. 

Your honors will perceive that the above suggestions are offered chiefly in the inter- 
est of the farmer and the working man, in whose behalf I respectfully solicit your con- 
sideration and influence. 

I am, gentlemen, very respectfully, yours, 

CHAS. W. STAYNER. 



Testimony of D. P. Ballard, lawyer, Yakima City, Wash,., relative to agricultwe, timber, 

and lode claims. 

The questions to which the following answers are given will be found by unfolding 
page opposite page 1 : 

Yakima City, Wash., October 3, 1879. 
To the Public Land Commission, Washington, D. C. : 

Gentlemen : Agreeably to your request, I beg leave to submit the following in 
answer to your questions contained in circular, and herewith forward as requested. ' 

1. D. P. Ballard, lawyer, Yakima City, Wash. 

2. Two years. 

3. Yes. Soldiers' homestead and pre-emption. 

4. By transacting business for others. 

5. Uncontested — average cost for homestead, $23.50 ; time, ten days. Contested — 
cost, $150 ; time, forty-five days. 

6. Yes. There are too few land offices, and permitting parties to " prove up " or 
"make filings" before clerks, &c, opens wide the door of fraud and favoritism. 
These " clerks, &c," having plats forwarded to them from land office 150 to 250 miles 
away, " cover up " special claims to accommodate pets. The homestead and pre- 
emption laws being made for the poor, no fees should be charged for " entries." Also 
require contestants to proceed in local courts. 

7. Between Columbia River and Cascade Mountains — low mountain or hill covered 
with bunch grass and sage brush, and valleys varying from 1 to 30 miles wide and 10 
to 100 long. All pastoral and agricultural well up into the Cascades to timber line. 
Small skirts of timber along streams. 

8. No general rule or geographical division will do, unless we call lands agricultural, 
pastoral, and timber, the word " timber " not to include lands covered with brush, 
balm, or cotton wood, but such to be classed as pastoral in this entire Territory east of 
Cascade Mountains. 

9. Have been county surveyor. Do not think I could now recommend any change. 

10. Let each homesteader and pre-emptor, in prairie countries like this, with all the 
timber in mountains, and where we go from 5 to 30 miles for fuel, &c, be allowed to 
pre-empt 200 acres— 160 prairie and 40 of timber— whether adjoining his home or not. 
Give each soldier of 1861-65 a land warrant for 160 acres. Let sawmill men buy in 
tracts of 640 acres, and when any three county officers certify that that 640 is 
" skinned," sell another section. Charge settlers— that is, agriculturists — $1.25 and 
sawmill men $2.50 per acre. 

agriculture. 

1. Short winter, long summer. Rain in early spring and late fall. Season from 
March 15 to December 25. Snow one-half foot to four feet deep, according to locality. 
Plenty of water for irrigating. 

2. Spring and fall— two-thirds in spring. Yes. 

3. One-half of all tillable land, being about one-third the whole. 

4. One-third the whole. 

5. Wheat, oats, rye, ba.rley, corn, buckwheat, apples, peaches, pears. All small 
fruits and vegetables. 

6. Do not know. 

7. From mountain snow which melts in May, June, &c. 

8. By irrigation the fertility of soil is increased, as is evident from the fact that the 
tenth and twelfth wheat crop (as other grain) is better than the first, and no manure 
used. Three thousand feet above sea. 



€38 PUBLIC LANDS. 

9. One-tenth, to one-fourth exhausted. After two or three years the land becomes 
" full " of water and requires little or none. Both. Custom and common law with 
act of July, 1866. 

10. So to speak, noue " taken up." Riparian owners, by custom, facilitate its use. 

11. None, worthy of note. 

12. One-third. 

13. No. But if, then 640 acres. 

14. No, by no means. We have 300,000 cattle and horses now living on these lands. 
But if yes, then 640 acres to each man (on account of rocky wastes) and at 25 cents 
per acre. 

15. One acre (grass) favorably. 

16. This question is not easily answered, for it is too general. 

17. Not over two or three. 

18. No perceptible change. 

19. No. No. 

20. No. It would d — n us. 

21. Plenty. 

22. Do not know. 

23. Diminished. 

24. Yes, and no— owing to locality. 

25. None so far. 

26. Sheep, 100,000 ; cattle, 300,000. 

27. None. 

28. Yes. Corner stakes rotted and gone ; mounds poorly made. 



1. A strip 20 to 45 miles wide extending from south to north line of Territory. Pine 
fir, cedar, tamarac, and very little oak. All excellent but oak. 

2. Cottonwood, Lombardy poplar, and walnut in valleys. First two. Time, eight 
to twelve years. 

3. By sale. See answer to question 10. 

4. Classify both in kinds and size of tracts. 

5. Yes ; scrubby in part. Twenty years. 

6. Are result of camping fires. Small in extent. Make it criminal. 

7. Railroad cut extensively, and should pay. Miners, builders, &c, should have it 
free, as they waste none. Make it felony for corporations to depredate, except for 
mining, &c. 

8. Lent ad libitum. First who gets it. 

9. No ; unless land offices be increased in number. Then, yes. 

LODE CLAIMS. 

1. South Western Missouri. Lead and zinc. 

2. Not posted. 

3. Can give none. 

4. No ; to last part. 

5. I think so. 

6. Cannot say. 

7. Have heard so. 

8. Decline to further answer respecting mining. 

D. P. BALLARD. 



Testimony of James T. Berry, surveyor, Chehalis, Wash., relative to agriculture, timber, and 

placer claims. 

The questions to which the following answers are given will be found by unfolding 
page — : 

1. James T. Berry, surveyor ; Chehalis, Wash. 

2. Eight years. 

3. I have homestead ; 160 acres. 

5. I obtained my patent within forty days after making final proof, uncontested. 

6. I think it a needless expense to have to travel to register's office to file and make 
proof. 

7. We have agricultural, pastoral, and miueral lands. The river and creek bottoms 
are good, i>roductive lands. The Burnt Hills pastoral, generally coal deposits. 

8. General rule. Not possible by geographical lines. 



PUBLIC LANDS. 639 

9. I think the level and bottom lands unsurveyed should be subdivided in sections 
to suit shape of lands, and the mountainous regions left to be selected as wanted by 
mining parties. 

AGRICULTURE. 

1. The climate is even and beautiful here. Eainfall great. No irrigation necessary. 

2. Irom October to June. There is always sufficient water-supply when most needed 
for growing vegetation. 

3. All. 

8. At from 1,200 to 1,600 feet altitude. 

13. I think, one section. . # 

14. Only by actual settlement. 
18. Increased. 

20. I think so. # 

21. Plentiful. 

24. N,o. 

25. Cattle will not remain on sheeps' pasture. 

28. In some few cases the corners are now hard to determine, especially where fires 
have occurred. 

TIMBER. 

1. The land has been once all timber. 

5. I know of several fir forests, with no living cedar now, that once had fine cedar, 
which had been destroyed by fire. 

6. The natives set out the fires, which are very destructive to both soil and timber. 

7. The depredations are very limited in this county. 

9. Perhaps so. 

PLACER CLAIMS. 

1. Coal and iron are very extensive ; I believe coal underlies nearly half the surface 
of our county, 1,000 miles square. 



Testimony of A. K. Busk, Riverside, Wash., postmaster. (Abstract.) 

Suggests the following defect in the present laws : " Under the ruling that those 
who notify on homestead claims and fail to perfect title may notify on another claim, 
it is a common practice to take off marketable timber, abandon, and relocate." 

The soil and climate of at least the larger portion of the Territory favors the growth 
of cereals, except corn, for which the nights (on the coast range especially) are too 
cool. The yield of grass is very great on both hill and valley lands. Apples, plums, 
pears, cherries, and most small fruits yield largely and are of fine quality. Peaches, 
grapes, &c, on the portions bordering on the ocean cannot be grown to any advan- 
tage, for want of sufficient warm weather. 

There are many tracts of excellent timber available for manufacture of lumber, for 
ship-building, farm-building, &c. This land, when cleared, will produce a large growth 
of grass, and that portion which is not too hilly or rolling for cultivation will grow 
grain, vegetables, &c. All kinds of hardy vegetables yield largely, and are of fine 
quality. 

There are indications of coal deposits in this county, in one or two places particu- 
larly. The deposits are believed to be large and easy of access. 

Rainfall 49 inches and upwards ; rainy seasons generally commence November 1 to 
December 1, lasting until April or May ; February often dry and pleasant ; snow in 
western part of Territory almost unknown ; country well watered by streams, large 
and small, springs, &c. 

Tide lands on bays and rivers (unless diked) and hills too steep for cultivation. 
• Would dispose of timber lands by homestead to those wanting homes, by sale to 
mill-owners in tracts from 160 to 230 acres, if within available distance of their mills, 
at from $2.50 to $5 per acre, according to location, timber, &c. I would suggest that 
640 acres be the very extreme sold to any one firm, unless in some country good for 
nothing but timber, and that we do not have in Washington, so far as my knowledge 
extends. If not limited, many will purchase large tracts, even where no mills are 
built, hold it for years, and thus .prevent others from getting it who would build mills 
and manufacture "it into lumber, &c. ; also retarding settlement of country. There is 
much timber stolen by mill-owners and others furnishing logs to them. Would sug- 
gest that men be appointed and means be furnished to enforce laws already enacted. 
Laws not enforced are worse than no laws at all. 



640 PUBLIC LANDS. 

I do not think it would make much difference where the authority was vested, if 
all departments were alike honest and men who would act without fear or favor were 
appointed in each different section of country where such depredations were likely to 
occur, to look out for such depredations and report to the proper authority, &c. 
Respectfully, 

A. K. BUSH. 



Testimony of Hiram Dustin, Golden Dale, Klikitat County, Washington, relative to agri- 
culture, timber, and lode claims. 

The questions to which the following answers are given will be found by unfolding 
page—: 
To the Land Commission : 

Messrs : Having received a pamphlet containing interrogatories, I proceed to an- 
swer such as have come within my knowledge and observation, and also to offer a few 
suggestions in relation to your business as commissioners. 

1. I am a resident of the town of Golden Dale, Klikitat County, Washington Ter- 
ritory, and have been for about two years. 

2. I have not acquired or sought to acquire title to any of the public lands in this 
Territory, but located a homestead in Oregon some nine years ago. . 

3. Being in the practice of the law in this county, I have had occasion to examine 
the present land laws, and believe that, as a general thing, they are efficient and pro- 
duce the intended results, with the exception perhaps of the act in relation to soldiers* 
additional homesteads, which I think is an instrument placed in the hands of monop- 
olies — provided they see fit to avail themselves of it — that will do great mischief be- 
cause of the vast quantity of soldiers' additional homesteads now for sale. I think 
the intention of Congress was to benefit the soldier, and that no one person should 
have a right to buy them up and locate more than one tract of land ; but as it now 
stands a man can locate as much land as he can buy soldiers' floats to cover. 

The physical character of the country in this county is rough and mountainous ; 
there is not over one-third of this county that is adapted, to farming, a greater portion 
of it being timber and pastoral lands. 

This is a temperate climate and very dry. The snow falls on an average about one 
foot deep. Some winters, however, there is scarcely any snow at all. The rain falls 
most late in the fall and during the winter. There is but very little irrigation of 
crops in this county ; but in Yakima County, joining us on the northeast, they irrigate 
all crops ; in fact, there is no certainty without it. My observation of irrigation has 
led me to believe that it is an injury to the soil in certain localities, while crops seem 
to grow rank by its use. I think the land will sooner wear out. In Yakima Valley 
there is the finest chance for irrigation ; the land is level, and the streams rise high up 
in the mountains which surround it and spread promiscuously over it. The farmers 
have brought two very nice ditches from the mountain streams, which afford abun- 
dant irrigation. 

With regard to pasturage land, I would suggest that it would be a good idea for 
Congress to pass an act allowing persons to locate pasture claims either as a home- 
stead or allow them to purchase a certain quantity at, say, $1 per acre, but not allow- 
ing any one person to locate over 200 acres. This, I think, would keep on an average 
about one hundred head of beef. Of course some parts of the country would do, I think, 
still better. There is plenty of beef cattle in this county, but as to the amount to the 
square mile I am not able to say. There are also large herds of sheep in this county, 
which bring more money into the county than from all other sources combined ; but 
still they are not a success, as they eat out the range and destroy it. One sheep, in 
my opinion, is more destructive on grass than a full-grown cow, and the growth of 
grass is invariably diminished wherever sheep are pastured. I shall answer a few 
more questions with regard to the timber. 

I cannot say how much timber there is in the county, but will say that there is an 
abundance of it, and mostly pine, which makes the finest finishing lumber we have in 
the market ; I do not think it is excelled on this coast. There is, however, sections of 
land without any timber, and upon a number of such persons have located timber 
claims, under the timber-culture act, but as yet I fail to see the timber growing. 
In fact, I do not think there is twenty acres of timber planted in the valley. The peo- 
ple generally make raids upon the government timber lauds. We have some six or se% en 
sawmills in operation in this county, all of them cutting timber from government laud. 
What ought to be done under the circumstances is a little hard to determine, yet I shall 
suggest a remedy. Let Congress pass an act allowing persons to cut timber on the 
government land by paying a certain revenue, and have some one appointed in each 
county to look after it and collect it. Something of this nature must be done or else 



PUBLIC LANDS. 641 

the laws must be put in execution, because in a few years thousands of lumber will be 
shipped away from this county to supply other parts of the Territory. 

It is argued by some that it is not to the interest of the farmer that the mill men or 
the wood men should pay stumpage, for the reason that they would be the losers — be- 
ing the consumers would have to pay the bill. I ask, would it not be far better for to 
pay a moderate revenue and thereby protect our timber and prevent its being de- 
stroyed, than to get our wood and lumber a few cents on the thousand or cord for a 
few years aud then have none in the county at any price ? 

I do not wish to bring any one into trouble in expressing my views, but there is no 
question but what there should be some steps taken to arrest the wholesale destruction 
and robbing of the timber of the government. Either make them pay stumpage 
or compel them to purchase it. The worst of it is transient mills or portable mills can 
be built almost anywhere in the mountains, and when they have culled out the very 
finest of the timber, they simply move to another and better place. By this means 
the finest and best of the timber is being used up. Of course in time there will be a 
second growth, but its growth is very slow, perhaps twenty years before it would be 
of any consequence for poles or fire-wood. 

As for lode claims I have had no experience whatever. Thero is, however, I learn 
from prospectors, good ledges or lodes not yet developed in this country, which will bo 
a source of great wealth to the country at no far distant day, and there is no doubt in 
my mind but what Washington Territory will in a few years rank among the first 
agricultural and mineral States in the Union. 

In conclusion, I would say, gentlemen, I hope you will excuse me for this very brief 
epistle and indefinite description of our country, but as I am not a traveler my knowl- 
edge of those things to which your attention as commissioners is called to is very lim- 
ited, but this pamphlet *vas sent to me by the land agent of Vancouver, W. H. Small- 
wood, and I complied with his request to the best of my ability. 
Yours, &c, 

HIRAM DUSTIN, Attorney-at-Law. 

Golden Dale, Wash. 



Testimony of Edward W. Smith, Evanston, Wyo., relative to the public lands, stock, water 
rights, surveys, cattle and sheep ranges, the sheep and cattle men, pastoral, homestead, timber 
lands, land surveys, arid and humid regions. 

Evanston, November 4, 1879. 

Edward W. Smith, of the firm of Beckwith, Gwynn & Co., bankers, merchants, and 
cattle dealers of long standing at Evanston, testified as follows : 

I know the land in this district well. It consists mostly of grazing lands, and there 
is a little timber, with some precious metal. There is also deposits of coal in the dis- 
trict. There is no rainfall, and but little snow. There is so little agriculture in the 
district that it is hardly worth while to take it into account ; it is all done by irriga- 
tion. The timber on the high mountains is spruce, shaking aspen, and cottonwood. 
On the grazing land bunch-grass predominates, intermingled with a little sweet swamp- 
sage. The rains decrease under grazing, and it takes about five acres to support one 
beef. I call this district a grazing district. I should say there were 100,000 head of 
cattle and the same number of sheep in the district. Calves are worth about $5 ; year- 
lings $10, and two-year-olds about $15. Beef cattle are worth $20 apiece, or two and one- 
half cents per pound gross weight. Sheep are worth $1.50 to $2.50 common for mutton, 
and 20 to 28 cents at the railroad. From 5 to 8 pounds of fleece can be cut from each 
sheep annually. Our cattle are mixed and graded ; the breed is steadily improving, 
because of the liberal introduction of blooded bulls. 

In the southern part of the district the water-rights have mostly been taken up for 
cattle and sheep. In that country there is a rule established by custom that the first 
appropriation of the water holds and controls it. 

The district has not been wholly surveyed ; the survey should be extended over the 
public lands in this district. 

Cattle and sheep ranges are held by suffrage and custom. There is now a law of the 
territory which prevents trespassing upon occupied ranges near settlements, but away 
from the settlements the shot-gun is the only law, and the sheep and cattle men are 
engaged in a constant warfare. The sheep men are generally the aggressors. Their 
sheep destroy the grasses, and the cattle will not again graze on the land. If the stock 
owners could obtain absolute control of their ranges under United States laws, the value 
of the herds, both cattle and sheep, would be materially increased, both as regards 
beef and mutton and the wool, and peace and quiet would supersede the present 
turmoil. 

The lands in this district are all arid, and there is no water for irrigation. The land 
should be surveyed and sold, in quantities to suit the purchaser at, say, 10 cents per 

41 L C 



642 PUBLIC LANDS. 

acre ; or I would lease or let them, referring all questions as to their occupancy to the 
district land officers. I think 100 head of cattle, and their increase, would sustain a 
family. Twenty- five or thirty acres of these lands will sustain a beef, so each settler 
should, have a pastoral homestead of about 3,000 acres, and use of the land by his cat- 
tle should be considered occupancy. I think, in the present, herds of cattle and sheep 
consists the mineral wealth of this section, and whatever laws are passed that interest 
should be first considered and protected. This question of grazing titles should be set- 
tled at once. Possession of distinct and well-defined ranges will result in contentment 
and permanency. We have to have summer and winter ranges and put up hay for 
cattle. 

The timber lands should be surveyed and sold in unlimited quantities. They are 
annually ravaged by fires, which destroy ten times what the people use. The entire 
subject of timber lands, as well as other lands, should be turned over to the United 
States district land officers. I would grade the price per acre both as to quantity and 
quality. Private ownership best protects property in this country. 

I am acquainted with the present system of land surveys, and. think it should be 
improved and retained. Stakes at corners should be more permanently established. 

We need population, and the pastoral homestead will aid us to acquire it. We do 
business with most all the people in this district, and I know that they want these land 
matters settled at once. 

This arid region never can nave the same condition as the humid regions, and people 
must live in communities for school and other purposes. 



PUBLIC LANDS. 643 



APPENDIX B. 

OPEN LETTER OF R. W. RAYMOND RELATIVE TO MINERAL LANDS. 

[Published in the Engineering and Mining Journal serially, from November 22 to December 20, 1879. J 

Gentlemen : I have the honor to acknowledge the receipt of your circular contain- 
ing a list of questions with reference to agriculture, timber, and lode and placer mining 
claims : to such of which as may be within the range of my personal information answers 
are desired. I am in receipt also of your complimentary special invitation to state any 
general views upon the subject of the mining law, with which my professional expe- 
rience and my former official position as United States Commissioner of Mining Sta- 
tistics have made me somewhat familiar. Regretting that the pressure of business 
prevents me from preparing in response to such a call a full discussion of the prob- 
lems involved in your inquiry, I feel, nevertheless, that, as a citizen deeply interested 
in the success of your labors, I am bound to do what I can in furtherance of them, and 
I beg leave, therefore, to submit the following statements and suggestions with refer- 
ence to a part of the subjects now claiming your attention. 

The principle of the right of the sovereign to the ownership or control of any of the 
minerals in the earth, apart from proprietorship of the land itself, is not recognized 
by our laws. The government, like any private proprietor, possesses the surface of 
its lands, together with all that lies beneath them, to the center of the globe. There 
is no distinction in this respect between the base and the precious metals, or between 
the Atlantic and the Pacific slopes, or between the areas acquired by the United States 
from individual States and those obtained by treaties with foreign nations or Indian 
tribes. So far as I am aware, the government owns the minerals when it owns the 
land, and not otherwise. 

The mineral right, however, although it accompanies the surface ownership, is sep- 
arable by the act of the owner. A farmer in New Jersey may lease or sell the right to 
mine and carry away all the iron ore in his farm, with the privileges of entry and use 
of the surface necessary to mining operations, retaining his title in all other respects 
unimpaired; or he may thus dispose of the right to a single bed or vein of ore, retain- 
ing all others. A farmer in Pennsylvania may in like manner lease or sell all his 
"coal rights," or the right to one or more specified seams of coal, reserving to himself, 
undiminished, whatever is not thus transferred. A party owning two adjacent farms 
may grant the mineral right to a given deposit of coal, ore, or other mineral upon one 
of them, with the right to follow and mine in the other that deposit only. All these 
and many varieties of grants actually occur in our Eastern States ; and the rights 
thus conferred, as defined by the agreements creating them, are independent of sur- 
face ownership, although in their origin they rest upon the principle that the owner 
of the surface owns also the minerals beneath it. 

The government occupies precisely this position towards the public domain. It can 
do what it likes with its own. There is no " miners' right," created by the discovery 
of valuable mineral in any part of that domain, except what the government chooses 
to create by its own voluntary acts. By such acts it is bound, as an individual would 
be, neither more nor less. It is as free as any individual would be to dispose, as it 
may see fit, of any rights not already conveyed away ; to change its policy at any time ; 
to lease or sell on new conditions, or to decline to lease or sell at all. This elementary 
statement seems to be required to correct a popular impression that the principles of 
the law of mines are different in different parts of our country, and that there is some 
mysterious obstacle in this difference to the introduction of a uniform system. The 
fact is, that the owner of a gold mine in Georgia might, if he chose, sell his mine on 
the terms prescribed by the government to purchasers of gold mines in Montana ; and 
the government might, if it chose, by a change in the statute, alter its terms in Mon- 
tana to conform to the present usual practice in Georgia. 

The course of Federal legislation in this respect has been dictated by policy. Its 
object has been to encourage the developmeut of the mineral resources of the public 
lands, and to transfer the ownership of both land and mineral rights to individual 
citizens. That this course is wisest in itself, and best adapted to the spirit of our insti- 
tutions, scarcely admits of question. The policy of administering the public lands as 
a means of producing revenue, through mines, timber, agriculture, or rents, is one 
which a highly centralized or despotic government may perhaps pursue ; but certainly, 
it is not suited to Democratic or representative government ; and even in monarchical 
states, it has not proved advantageous, as may be inferred from the general tendency 



644 PUBLIC LANDS. 

in all enlightened nations at the present day, toward the transfer of governmental enter- 
prises to private hands. *It may be questioned, perhaps, whether a "system by which 
the government, as in Spain, Portugal, and Mexico, retains the ownership of mines, 
and leases them upon conditions involving their continuous working, is not calculated 
to secure a more active and steady mining industry than a system which, conferring 
individual ownership, permits mines to lie idle at the will of their owners. But I 
think no one can fail to perceive, upon thorough consideration, that the advantages 
of the Spanish system are delusive, and that its disadvantages, in the expense of 
administration and the inducements which it offers to the "robbing" of mines, 
are greater than its advantages, even if these were real. The tenant of a govern- 
ment mine will work it if it be profitable, of course. He would do the same, if he 
owned it. When it ceases to be profitable, he may continue operations for a while, 
rather than lose his lease. But there is no economic gain to the State in forcing 
its citizens to unremunerative labor. On the contrary, if a mine does not pay, it is 
best that it should be closed, while labor turns to more productive enterprise ; and 
if a mine is to be closed it is far better that this should be done by an owner than 
by a tenant, for the owner may hope to resume operations under more favorable cir- 
cumstances, while it is the interest of the tenant, whose abandonment of the property 
is final, to rob it of all accessible value and leave it in ruins. As for the revenue to 
be derived from renting mines, two things may be confidently asserted: First, if it 
were wise to burden the industry of mining with a tax not laid upon other forms of 
production, this could be done more effectively, conveniently, and equitably by a bull- 
ion tax ; and secondly, it is not wise to do anything of the kind. I am aware that, a 
dozen years ago, while the bullion tax was collected by our government, I favored in 
my report to the Secretary of the Treasury its continuance in reduced measure, and its 
devotion to special purposes for the benefit of the mining industries. I will not pause 
here to explain in what particulars the circumstances and in what particulars my 
views have changed. It is quite sufficient at present to say that the obvious policy of 
the government is to treat mining like any other industry, and to administer the min- 
eral lands, like the agricultural lands, with as little machinery and as little interfer- 
ence with private enterprise as possible. 

We come, then, to this proposition — the United States is the holder, as the trustee 
of the people, of a vast area of mineral land. On the whole, it is best to sell this land 
as fast as possible, not looking for large revenue from its sale, but rather transferring 
it to private owners at prices that will repay the cost of the surveys and other neces- 
sary proceedings, and under conditions that will favor the exploration of its resources. 
To encourage mining, or at all events to lay no unnecessary burdens upon it, and to 
get rid of the unproductive property in mineral lands which cannot under our system 
be made productive by the government — these are the objects to be attained by Fed- 
eral legislation. 

In selling the mineral lands should the government make any distinctions as to 
price ? It would have a perfect right to do so ; and it seems at first glance a wrong to 
the people that public property worth many millions of dollars should be given away 
to those who have no other claim than that of discovery. This point deserves careful 
consideration. There are three ways in which the government might derive pecuni- 
ary benefit from the developed value of the mines on the public domain. It might 
provide for an estimate of value by its own officers, and a price based on such an esti- 
mate. It might sell the mining locations at public auction, thus leaving the estimate 
of value to competing purchasers. Or, it might reserve a certain percentage of the 
gross or the net product of a mine — an unassessable interest in the property — which, 
in case of a large and profitable development, would amount to a considerable sum. 
These three alternatives cover substantially all that could be done in this direction, 
apart from the actual retention of ownership by the government, and the collection 
of mine-rents. 

As to the first of these, it is evident that in most cases no government officer could 
possibly make a just estimate of the value of a mine, before it had been worked ; and 
no intending purchaser would spend money in developing it, without knowing at 
what price he could buy it ; nor would it be for the interest of any intending purchaser 
to develop the real value of the property and thereby enhance its price. 

The sale of locations at auction is open to similar objections. Nobody will explore 
and develop a piece of mining ground, with the knowledge that every proof of value 
which he may expose will make its acquisition more costly and more doubtful. But 
if such sales are to be held without previous exploration of the claims, then the chances 
are that the prices to be obtained by this method will not exceed the ordinary rates 
sufficiently to pay for the extra trouble and cost of administration. 

The third alternative — the reservation of a proportion of the proceeds of a mine — 
would prove in practice, I think, difficult, odious, and unremunerative. It would be 
really a special tax. If levied upon gross production, it would bear severely on strug- 
gling enterprises. If levied upon profits, it would involve an inquisition into private 
business, a premium on deceit and concealment, and a vast amount of official labor for 



PUBLIC LANDS. 645 

comparatively small return. It would be like the revenue tax on spirits in difficulty 
of enforcement, but not in resulting revenue. 

We may conclude, then, that the true policy of the government is to sell the mineral 
lands outright at uniform prices and with as little trouble and cost to itself and the 
purchaser as possible, seeking its profit, not in the direct proceeds of sale, but in the 
rapid development of natural resources and the establishment of prosperous commu- 
nities. 

It remains to be considered whether the present system of Federal mining law, as 
construed by the courts and administered by the General Land Office, effectively exe- 
cutes this policy ; whether it needs reform ; and, if so, whether that reform should be 
of the nature of moderate amendment or radical change. In the discussion of these 
questions, I shall strive rather to present an impartial statement of both sides than to 
advocate a definite scheme. No scheme suggested by individual study or experience 
can claim to be the best under the circumstances ; because it is of the very essence of 
the problem that the system adopted by the government shall be acceptable to the 
mining communities. The present arrangement, whatever may be its defects, has the 
positive recommendation that it will work, is working ; that it is a growth, and, like 
all growths, possesses vitality, which mere symmetry without vitality cannot replace ; 
that its evils are known, while those of a new system are unknown. Moreover, it is 
of the utmost importance that any proposed reform shall be practicable and accept- 
able, because its failure to be adopted and successfully executed would indefinitely 
delay, and perhaps defeat, all reform in this department. 

The declaration that the Government of the United States " owns the minerals when 
it owns the land, and not otherwise," might be deemed inexact as to Mexican land 
grants within our borders not yet confirmed by United States patent. Such grants, if 
they did not originally convey to the grantee the mining right, reserved that right to 
the sovereign ; and upon the transfer of sovereignty to the United States this re- 
served ownership of the metals passed to our government, which thus became, in these 
instances, proprietor of the metals in the land otherwise owned by private parties. 
But the same leading cases in which this rule was laid down (chiefly the so-called 
Mariposa cases) contain the decision that a patent in confirmation of a Mexican grant 
is not restricted to the interest transferred by Mexico to its grantee, although such 
Mexican grant did not convey the precious metals. The practical application of this 
principle annuls the effect of the preceding one, and justifies the general statement 
that the right to metals in the soil, as a royal prerogative, is not incident to the sov- 
ereignty of the United States or of any single State. 

The present system of Federal legislation originated in the tacit recognition of 
miners' customs, and has been gradually developed with perpetual, perhaps excessive, 
regard to those customs. Its general outlines are so generally known that I shall not 
burden this letter with a description of them. Still less can I attempt to discuss in 
detail its doubtful or ambiguous features, although some of these may receive atten- 
tion in passing. I purpose rather on this occasion to consider directly the evils which 
seem to attend the operation of our present system, and the possible remedies for such 
evils. 

Not all the complaints so loudly made deserve the attention or fall within the proper 
sphere of the government. People who engage in mining, on the public lands or else- 
where, have no special claim to be protected against the consequences of their own 
ignorance or over-eager credulity. The hazardous nature of the industry is good 
ground for rejecting the notion, once generally entertained, that special burdens should 
be laid upon it — that the mines, in some way not demanded of farms and factories and 
railroads, should " pay the national debt" — but it is not good ground for asking the 
government to furnish the technical knowledge required in mining, or to exercise 
supervision over mining operations. The general aid given to all the industries of 
the country by a scientific survey, and a complete statistical review of its resources 
and activities, is all that can be properly conceded ; and this will never prevent the 
complaints of many adventurers who have suffered damage through the risks and diffi- 
culties peculiar to mining. The evils of " speculation," of which we hear so much, can- 
not be cured by legislation, if, indeed (as I do not believe), they are unmitigated evils, 
or if (as I do not believe) speculation could be repressed at all, without producing some- 
thing worse. We may set aside, then, all those features inherent in the industry of 
mining itself, as matters which the government cannot mend, and with which it 
should not meddle. 

Another set of embarrassments arises from the peculiar present conditions of mining 
in the public domain. The law-abiding instinct of our people is remarkable. The 
rudeness and violence often observed in our frontier communities cannot hide from 
the thoughtful observer the deeper fact that our institutions have bred in the masses 
a notable capacity for self-government. The very first step in a new mining district 
is the making of laws ; and the degree to which such laws have been respected and en- 
force by public sentiment is a significant testimony in behalf of democracy. But this 
state of affairs, though infinitely better than barbarism, and certain, asexperieace has 



646 " PUBLIC LANDS. 

shown, to pass by peaceful gradations into the complete, lawful organization of society, 
necessarily involves much initial confusion, bearing the germs of future trouble. The 
fundamental right of property fails of adequate definition among a host of pioneers, 
settling suddenly, like a swarm of bees, in the trackless wilderness. The entrance 
upon the public lands of population in advance of official surveys, is the most prolific 
source of embarrassment arising out of the present conditions of mining in those 
regions. Nearly all the Other evils of this class will cure themselves faster than Con- 
gress could cure them. This one, however, needs, in my judgment, a special remedy. 
It will not cure itself under the present system of land surveys. A system is imperatively 
called for, which will permit the surveys to keep pace with the pioneers. The exact 
determination of points of reference all over the country, to which local surveys could 
be referred, and the abandonment of the futile attempt to lay out our whole national 
area like a checkerboard, with meridians and parallels, would, I think, be a wise and 
feasible measure, so far as the mineral lands are concerned. Of the agricultural land 
system I am not qualified to speak ; but it seems plain enough that the reform re- 
quired for the mountain lands, which mostly contain the mines, would be required also 
for the valleys inextricably intercalated among them, and occupied with mill-sites and 
ranches. 

I conclude, then, with regard to the evils inherent, not in the nature of the mining 
industry, but in its present conditions in the West, that they are either (1) such as may 
be left to cure themselves, or (2) such as the local governments of States, Territories, 
and municipal subdivisions should deal with, as they deal with other matters affecting 
public peace and the enforcement of contracts ; or (3) such as the Federal Government, 
the owner of the public domain, may measurably remedy by a more nearly adequate 
provision for the reception of settlers, and the adjustment of their initial relations to 
the land. 

We now come to a class of evils inherited from the earlier (and, to some extent, still 
continuing) local customs. In my official reports (particularly the first, transmitted to 
Congress in 1869), to which, for brevity's sake, I beg to refer, without further citation, 
I have discussed at some length the absurdity of permitting the title to mineral lands 
to rest upon the shifting and untrustworthy basis of an irregular, periodical plebiscite, 
the edicts of which are carried out by irresponsible officials, and the records of which 
often may be, and often have been, exposed, without efficient guardianship, to loss, de- 
struction, mutilation, or falsification. It has repeatedly happened that the disputed 
possessory title to valuable mining property has turned upon the memory or honesty 
of contradictory witnesses, concerning records which could not be found, landmarks 
which had disappeared, " customs " which had been repeatedly amended, repealed, and 
forgotten, and acts performed pursuant to or in violation of such customs by persons 
who had long since left the district or the world. Even if all mining recorders were 
sworn officers ; if all their records were properly kept and guarded ; if the local regu- 
lations were carefully prepared, not liable to sudden change, and permanently pre- 
served for reference, there would still be great confusion arising from the lack of 
uniformity in the methods of acquiring and maintaining title. Something has been 
done, as I shall hereafter show, to remove the evils inherited from the miners' " cus- 
toms." What remains to be done is to abolish altogether the irregular and whimsical 
subdivisions known as " mining districts," with all their officers, and to make all min- 
ing titles on the public lands originate in entries duly attested and preserved in dupli- 
cate or triplicate by the regular officers of the United States. Once, this would have 
been difficult and expensive ; but I think the time has come when it can be thoroughly 
done, and will meet with the approval of the mining communities themselves. 

Should the Federal Government attempt to replace all local regulations with a com- 
plete mining code ? The answer to this question depends largely upon the meaning of 
the terms employed. It is evident that in all points within the sphere of State govern- 
ments, legislation should be left to them ; and, by analogy, though not with the same 
force, we may conclude that similar freedom should be accorded to territorial legisla- 
tures. According to the principles already laid down, the United States is simply the 
owner of certain lands, the development and sale of which it desires to promote. It is 
the business of the local governments to look after the peace and general welfare of 
the inhabitants ; even considerations of political economy, such as the prevention of 
irreparable waste, would not justify the Federal authority in doing more than to look 
after its own property. Consequently, it seems to me, nothing should be done by Con- 
gress to establish mining regulations apart from such measures as are required to en- 
courage the exploration and purchase of the public mineral lands, and (as incident to 
tMs end) to convey to the purchaser definite and secure title. 

It may seem desirable, on the whole, that the size of mining claims should be made 
uniform by law over all the public domain. The present law fixes the maximum length 
and a maximum and minimum width ; but within these limits any size may be fixed 
by local " custom " or rule ; and the liberality of such '* custom " is apt to depend upon 
the number of miners to the acre present when the "custom" is ordained. It must 
be remembered that the practice of fixing these dimensions by votes of the inhabit- 



PUBLIC LANDS.' 647 

ants grew up at a time when they involved only the use of the surface for mining 
purposes, such as dumps, machinery, buildings, &c, and not such an absolute owner- 
ship thereof as rendered any intrusion by others an act of trespass. The miner was 
not limited by his surface in his underground operations ; nor did his prior surface 
right hinder in any way the explorations of other prospectors, or their working of 
other veins within the space covered by his claim. Hence, very narrow surface claims 
were adequate appendages to very large mines. 

In any attempt to sell its mineral lands, the policy, as well as the clear right, of 
the United States seems to be to divide the property into parcels of such size as will 
be at once most convenient to itself and most attractive to the buyer. Under the 
present law, however, there is no great practical difficulty in consolidating claims so 
as to obtain a sufficient portion of the main lode, which is the object of the purchase. 
Moreover, the State and Territorial legislatures have done much, and in many cases 
have done it admirably, to supersede with definite codes the previous local regula- 
tions of the districts. I am inclined to think that the size of claims, under the present 
system, may be left to them, within the limits fixed by the Federal law. If the pres- 
ent law is not changed in any other particular, I do not think it need be changed in 
this, except so far as to provide for certain cases in which the actual width of a vein 
at the surface is greater than the width of the claim. This point may be better dis- 
cussed under a subsequent head. 

Passing from the evils inherited from the mining customs, we come to consider such 
as are the legacy of former Federal legislation. The acts of Congress intended to 
correct the causes of complaint arising under the absence of all uniform law have en- 
tailed upon us some unnecessary complications, which have been further aggravated 
by conflicting decisions of the Land Office and the courts. The Supreme Court has 
brought order out of chaos in a number of cases which have reached it ; but many 
moot points remain, and will, perhaps, never be settled, before the necessity of con- 
sidering them shall have passed away entirely. I refer now to those difficulties only 
which arise from the features of our earlier laws (principally that of 1866), repealed 
or amended by later acts with reservation of all vested rights. The law of 1866 has 
been held in some cases to convey to the patentee under it no real ownership of the 
surface, but to give him, nevertheless, nnderground rights which the act of 1872 does 
not confer. This doctrine was partly overthrown by the decision in the " Eureka 
case " in 1877 ; but a recent decision in Utah shows that some courts, at least, hold 
that, among the vested rights of a locator prior to 1872, the right to follow his vein 
on the course into the ground of a prior locator is included, and cannot be destroyed 
even by the patent of the United States granted (prior to 1872) to the prior locator. 
It is claimed also that parties locating under the act of 1866, though they did not ap- 
ply for patent until after the passage of the act of 1872, had a " vested right " to ob- 
tain, under the latter acts, a patent comprising all the privileges granted to patentees 
under either act. I have elsewhere argued, at length, the unsoundness of these and 
similar contentions. I mention them here simply to show the nature of the compli- 
cations inflicted upon us by past legislation. 

I do not see that legislation is required to remedy this state of things. The num- 
ber of mining claims located before 1866, held by uninterrupted possessory titlo ever 
since, but not made subjects of patents, is not largo enough to require a general meas- 
ure ; and the troublesome questions of so-called " vested rights," accruing under the 
earlier statute will best be settled judicially. 

This brings us to consider briefly the evils developed in the administration of the 
present law. There is cause for complaint in the expense of proceedings attendant 
upon the procurement of surveys and. the perfecting of titles. Your inquiries in the 
mining districts will have shown you that these expenses are not only onerous, but 
exceedingly irregular, being much greater in some districts than in others. As the 
true policy of the government is to sell its mineral lands, no unnecessary obstacles in 
the way of costly proceedings should be interposed. And this point is particularly 
reasonable in view of the fact that the surveyors who charge whatever they can get 
for their services have in many cases proved to be somewhat careless workmen ; so 
that there is reason to complain of defective, as well as expensive, preliminary work. 
Changes in the machinery of the law, whether its general principles are changed or 
not, will be required to remedy such evils. The multiplicity of officials may be re- 
duced; their duties may be redistributed ; and they may be paid by the government, 
and bound to pay over to the government all their legally-determined fees. The result 
should be a saving to the people and no loss to the public treasury. 

We have considered briefly the inherent, the inherited, and the administrative evils 
of our Federal system of mining law. We now take up, in conclusion, a fourth class 
of evils attendant upon that system, namely, those which flow from the main features 
of the sections of the Eevised Statutes constituting our only national mining code, and 
which require, as a remedy, important changes in the law, not mere reforms of adminis- 
trative detail, such as have been alluded to under foregoing heads of this discussion. 

I repeat the declaration already made as a starting-point, that the true policy and 



648 PUBLIC LANDS. 

avowed purpose of the government is to sell its mineral lands on such terms as will 
promote their exploitation. Whatever may be the alternatives to which we are now 
shut up, we had, in the beginning, the possible course of renting the mines, or in other 
ways getting a revenue from them. I have already expressed my views on this point, 
and it may, therefore, be passed without further comment. Assuming, however, that 
the mineral lands should be definitely disposed of, the government might have, sec- 
ondly, transferred them to the States as fast as these were organized and admitted, or, 
thirdly, sold them in large quantities to private persons or corporations. In either 
case, the expense of surveying and selling in detail would have been saved. But the 
public advantages sought by the system actually adopted could not have been attained 
under any plan which permitted a monopoly of the lands, or the growth of conflicting 
rules in different localities as to the exploration and acquisition of mineral property 
by individuals. It may fairly be maintained that the retention of the mineral lands 
by the general government, with a view to their sale under uniform laws, to tona-fide 
miners or mining corporations, was, under the circumstances, wise. 

But the law, as it stands, fails to secure fully the objects for which it was designed. 
What it should do, to secure those objects, is to encourage prospecting merely as a 
preliminary to purchase ; to hold out inducements, or even apply pressure, which will 
lead the " possessory owner " or temporary occupant of a mining claim to become, as 
soon as practicable, its purchaser ; and to give to each purchaser a definite and secure 
title, as a protection to him, on the one hand, and to the intending purchaser of a 
neighboring claim on the other. In all these points, the law is more or less defective ; 
and its defects may be classed under two heads. Those which spring from the right 
to follow a lode in depth outside the side lines of the surface claim constitute the first 
class ; and their consideration involves the question, whether it would be wise and 
practicable to cease granting this right, and limit by vertical planes drawn through 
the side-lines as well as the end lines of surface claims the ownership of mines pat- 
ented hereafter. The defects which may be remedied without this fundamental 
change in the law constitute another class ; and of these I purpose to treat first, con- 
cluding my survey of the subject with a consideration of the so-called " side-line 
question. " 

Assuming that the right of the mine owner to follow and exploit his lode in depth 
between the projected end lines of his claim and beyond its side lines should be re- 
tained, the present law is still radically defective in several particulars. The theory 
of it is that, as a preliminary to purchase, the citizen may freely occupy and explore 
any portion of the public mineral lands not already occupied. This possessory title 
must be maintained by the performance of a certain amount of work annually. The 
amount fixed by the law is not enough to secure a real development of the mine ; but 
it is enough to discourage the practice, once common, of the holding of many claims 
by one adventurer, to the exclusion of those who would gladly work them, and it fur- 
nishes a good legal test of the otherwise indefinite act of abandonment. I doubt 
whether this feature could be changed with advantage. But the present law, by con- 
ferring upon the possessory occupant rights as extensive as those of a patentee, and 
by permitting the possessory title to remain undisturbed and invulnerable for an un- 
limited period, offers too little inducement to the locator to apply for a patent. In- 
deed, in a large number of instances, the inducement is the other way. Not only the 
expense of the proceedings for patent, and the chance of suffering local taxation, as 
owner of land, to which the mere squatter upon government land would not be sub- 
ject, operate to the advantage of the mere locator and the disadvantage of the pat- 
entee ; but the application for a patent involves the precipitation of all pending con- 
tests as to title. Adverse claimants must then speak, or forever after hold their peace. 
The result is, that locators often delay applying for patent, in order not to arouse 
opposition which they hope to wear out in time ; and disputes are thus nursed along, 
instead of being brought to an issue, and definitely ended. 

It seems that only two strong inducements to take a patent arise under this law. 
If a possessory holder wishes to be able to abandon his mine for a while, without 
losing it, he must get a patent. If he wishes to sell it to a distant capitalist, or to a 
stock company, he must usually get a patent, because such buyers usually (and always 
should) insist upon this security against adverse claims. Unless these contingencies 
arise, there seems to be no special reason for taking patent. 

In my judgment, the law should limit the period of possessory ownership ; should 
not authorize the working of lodes in depth outside the side lines of locations until 
after the patent has been applied for (even though, as now, that right be granted by 
the patent) ; and should render the holder of a possessory title only incapable of en- 
forcing an ejectment against parties working on his lode beyond his side lines, or of 
collecting damages, after he has applied for a patent, for ore so extracted by others 
before he made such application — under which term, in the present connection, I mean 
to include fill the steps required of the applicant for the proof of his claim. 

It may be said that, under such a law, locators might still go on indefinitely, by the 
simple expedient of repeated relocation. I admit the force of this objection ; and I do 



PUBLIC LANDS. 649 

not think a prohibition of such relocation by the same parties would be very effectual, 
since it would be easy for them to evade it by employing others to make the record. 
But I apprehend that the consideration of the loss of priority in title by relocation 
would be a powerful objection to the course ; and, at all events, it may be safely as- 
serted that the inducements to apply for patents would be stronger than they now are. 

I would mention, in passing, the limitation of the right of purchase to citizens as 
a feature of the law which serves only to annoy foreign purchasers, without prevent- 
ing them from really holding mines. A citizen may convey his patent " to any per- 
son whatever"; and this being the case, why not let "any person whatever" buy the 
mine and get the patent ? As it is, foreign corporations manage to control our mines, 
if they choose ; and our citizens are never weary of inviting foreign capital to do so. 

The law as it now stands, and as it has been in some cases at least construed by the 
courts, operates to the discouragement of the most enterprising kind of explorations, 
namely, explorations by shafts or tunnels. Section 2323 of the Kevised Statutes says 
that the owners of a tunnel " shall have the right of possession of all veins or lodes 
within three thousand feet from the face of such tunnel on the line thereof, not pre- 
viously known to exist, discovered in such tunnel, to the same extent as if discovered 
from the surface." In this grant, I believe the words "on the line thereof" have been 
so construed by the Land Office as to exclude veins crossing the tunnel, and thus to 
reduce the section almost to a nullity ; but even setting aside this construction, the 
phrase " to the same extent as if discovered from the surface " is enough to destroy all 
tunnel claims. For it is held that the discoverer of a vein "from the surface" can 
acquire no title, not even a possessory one, unless he finds its outcrop, and locates his 
claim to include that. If I remember correctly, the Land Office has refused to grant 
a patent for a vein discovered in a tunnel ; and I confess that it is difficult to see how 
any other decision could have been made under the circumstances. A patent requires 
a surface location, and that location must include the outcrop or the "top or apex" of 
every vein for which the patent gives title. 

The tunnel section might as well be repealed. It is worth nothing to anybody as it 
is now framed and interpreted. But I think it would be just to declare that the dis- 
coverer, in ground not already occupied, of a vein not previously known to exist, wher- 
ever and however he may discover it, by shaft or tunnel, at its outcrop or in depth, 
shall have the right to locate a claim covering the point of his discovery, and to obtain 
a patent entitling him to work that vein as if its outcrop were within his claim. I 
say this would be just; and it would encourage enterprise and promote the discovery 
of valuable deposits not otherwise likely to be exposed. But it would seriously com- 
plicate the relations of patentees and locators. Less effectual, but perhaps more x>rac- 
ticable, would be a provision authorizing the record of an underground discovery of a 
new lode, and giving to the discoverer a certain time within which he may seek for 
the outcrop or apex of the lode, and, upon finding it, be entitled to locate upon it, with 
the date of his underground discovery. If the outcrop or apex, when found, should 
happen to be covered by a patent, that ought to take precedence; but a mere location 
of later date than the underground discovery ought to give way. The guiding prin- 
ciple here is to encourage prospecting as much as possible ; but, above all, to encour- 
age the taking of patents. 

Another defect of the law, or its construction, is the vagueness of the title con- 
veyed under it by a patent. There is nowhere in it any definition of the terms " de- 
posits," "veins," " lodes," " ledges," "dips," "variations," "angles," "locations," 
" claims," &c, which are freely used. Some of them are merely tautological. Such 
phrases as " vein, lode, or ledge," " dips, variations, and angles," merely lead to hair- 
splitting constructions by puzzled jurists, who try to discover shades of meaning in 
what was probably nothing more than aimless rhetoric. The adoption of all the or- 
dinary miner's terms without definition constitutes one of the most troublesome ele- 
ments of the bondage to local customs which has fettered our legislation. Even 
if Congress should declare the mining law to be independent of such customs, the 
declaration would be futile so long as the customs must be appealed to for the inter- 
pretation of the law. The meaning of the terms "vein," "lode," and *" ledge," for 
instance, although much clarified by judicial decisions, is still subject to doubt. In a 
recent case in Colorado (which I cite, not to assail the ruling, but to illustrate this 
point), it was held that a " contact bed," or deposit, admitted to be legally a vein, did 
not begin to be a vein at its outcrop, because that was barren of precious metal, but 
did begin to be a vein, or in other words had its true outcrop or apex, at the point 
where it first showed by assay " an ounce or more per ton" of silver. 

Now, any law or construction of law which makes the miner's title dependent upon 
subtle geological or chemical distinctions is unfortunate. As far as practicable, the 
statute should be to worded as to avoid such contingencies. 

Another serious embarrassment of a similar nature arises from the construction 
which has been put upon the phrase of section 2322, " the top or apex of which lies 
inside of such surface lines extended downward vertically." Under this clause it ha& 
been held that unless a locator includes within the width of his claim the whole width 



650 PUBLIC LANDS. 

of the outcrop or apex of a lode, he cannot acquire the right to follow that lode be- 
yond his side lines. This ruling has been applied in cases in which the local laws 
actually forbade the locator to make a claim wide enough to include the lode. It is 
easy to see that in such a case two or more locations may be made side by side on the 
same lode, and neither of the locators possess the right to follow it in depth. The 
remedy appears to be to consider the prior locator or patentee as entitled to the lode, 
and a slight change in the statute would put this beyond doubt ; or else the provisions 
of section 2320 might be so modified as to forbid the limitation of width in mining 
claims by local regulation to a less width than that of the vein itself at the sur- 
face ; or parties holding locations side by side, comprising the outcrop, which neither 
of them singly covers, might be allowed to consolidate their claims and thereby ac- 
quire a right which, under the present construction of the law, I suppose they could 
not acquire by consolidation, since they do not severally possess it beforehand. 

But all these and many more ambiguities and uncertainties arising under the pres- 
ent law have their ultimate origin in the attempt to encourage the purchase and de- 
velopment of mineral lands by granting to the locator and patentee something more 
and at the same time something less than the contents of his claim, according to the 
ordinary common-law practice. Strictly speaking, the present system is, as I have 
shown, equally in accordance with the common law. But the ordinary common-law 
practice is that the boundaries of the mining rights are the vertical planes drawn 
through the boundaries of the surface tract. The convenience of this practice is at- 
tested by its universality. Land goes from hand to hand in parcels, and even when 
the mining rights have been alienated the unit of land measurement naturally re- 
mains the unit of measurement for the mining right. Our mining law involves end- 
less trouble in its attempt to combine two units, the surface and the lode. Before the 
law was enacted the miners had but one unit, namely, the lode. Surface ownership 
there was none, only an easement or privilege of using the surface when necessary for 
mining operations. It may be questioned whether the present system is an improve- 
ment. 

In the report which I had the honor, as United States Commissioner of Mining Sta- 
tistics, to present to the Secretary of the Treasury, January 18, 1869, and in which the 
subject of the mining law was discussed, I used the following language : 

" The Spanish and English laws, as I have shown, invariably bound mining claims 
by vertical, just as the property of land-owners is bounded. The modern Prussian law 
does the same thing. But, according to the present codes of other German states, and 
the ancient codes of all, inclined locations maybe granted, with the right to follow 
the vein in depth, without reference to the surface ownership. The American miners' 
law is unlike either, and, so far as I know, has no parallel in history. It comprehends 
the vein, its dips, spurs, and angles, to any depth; and under this provision, when two 
veins are found to meet in depth, the oldest location is held to be the main lode, and 
the other is confiscated as a ' spur.' (The word ' spui^ is omitted from the United States 
law of 1866 ; but the sweeping recognition in that law of ' mining customs' virtually 
restores it.) There is no justice in such a provision. On the other hand, there is no 
limit in American local regulations as to the distance between parallel locations, which, 
no matter how closely they lie together, are presumed to be on different veins until 
proved to be on the same. This state of things both invites and protracts a litigation 
which is seldom settled except by exhaustion and compromise. 

" There are not wanting those who urge the adoption of ' square locations ' exclu- 
sively as the cure for these evils. But with such, after mature reflection, I cannot 
agree. The great aim of the government, in disposing of its mines should be to secure 
their permanent and systematic working. To define the boundaries of mining ground 
by vertical planes does indeed lessen the danger of litigation ; but it also lessens the 
value of the claim ; and, in most cases, the value thus subtracted from one property is 
not added to any other. Thus, a miner under the Spanish law loses the right to work 
his vein because, at the depth of 600 feet it passes out of his surface boundaries into 
the neighboring claim ; but the neighbor is not much better off for knowing that 600 
feet below the surface he may find a vein of ore. To the miner who has already reached 
that depth it is valuable ; to the miner who must dig and blast 600 feet to find it, it 
may be worth nothing. Meanwhile it is undoubtedly for the interest of the country 
that the work should be continued in depth ; and the proper person to carry it on is 
evidently the one who has commenced it and prosecuted it thus far. * * * For the 
present stage of mining in this country, as for the earlier stages of mining in Germany, 
the inclined locatiou must be accepted as the best for lodes." 

My later reports and publications show a more decided recognition of the advan- 
tages of vertical boundary plaues, now almost universal among civilized nations. But 
Ihey also repeat the one consideration, which seemed to me decisive, ten years ago, 
against that system, and which still constitutes the chief objection to it. I mean the 
encouragement to deep mining held out by the present system, or, rather, the encour- 
agement to the investment of capital in mining, constitutes in the knowledge that the 
valuable mineral deposit may be followed indefinitely in depth. Can that advantage 
be in any way secured under a system of vertical boundaries ? 



PUBLIC LANDS. 651 

I shall waste no time in vindicating personal consistency in this matter. It might 
be shown that ten years have changed the conditions of mining in this country and 
the features of the mining law more than they have changed the views embodied in 
the long argument from which I have quoted. Our mining districts are better known ; 
it is more easily practicable to measure and define the surface-unit at the beginning 
of operations ; the vague rights granted by miners' custom have been largely shorn 
and restricted by definition. Above all, the present requirement that the survey of a 
claim shall not be changed after first location, except by relocation (sacrificing prior 
date of title), and that it shall convey only that portion of the mineral deposit of which 
it contains the outcrop, top, or apex, utterly revolutionizes the spirit of the former 
system, and reduces to a slender remainder the "rights of the discoverer." It is no 
longer possible for a citizen discovering valuable mineral in place to claim it by virtue 
of priority alone for an indefinite period. He must make haste to find its top or apex 
or outcrop before any one else ; then he must make haste to locate a claim including 
that upper edge ; and by that location, however wisely or unwisely made, he must 
abide through all subsequent proceedings for title. The certainty of a location car- 
rying absolute ownership of a tract and its contents would be in many cases far better 
for the miner than this combination of the chance of getting a great deal with the 
risk of getting nothing. 

But assuming that a change could be effected in the present administration of the 
statute, or in the statute itself, by which more freedom should be given to the locator, 
or assuming that, in the majority of cases, the discoverer actually finds and success- 
fully locates upon the outcrop of his deposit, then there is certainly a real encourage- 
ment for him in the knowledge that he can follow the deposit in depth. Can this be 
secured under a system of vertical side boundaries ? 

Two expedients only are suggested. The first is to vary the size of the claim, as the 
Spanish law does, according to the dip of the deposit. This is open to the gravest 
objections. It delays the definition of the surface claim (to the manifest injury of 
neighboring explorers) until the mine has attained a certain depth. The Spanish law 
makes this depth ten yards, and the dip of the deposit for the first ten yards is taken 
as the basis for determining the width of the claim (which, however, never exceeds 
200 yards on either side of the outcrop). It may fairly be said that this offers little 
security to the locator. The uppermost thirty feet of a vein are, perhaps, more likely 
than any other part of it to show a false, local dip. Yet it would not be practicable 
to require a greater depth, and hence a greater delay, before settling the boundaries 
of the surface claim. 

But if we cannot well vary the size of the claim according to the features of the 
deposit, the only other expedient is the granting of a tract sufficiently large to offer as 
great encouragement to miners as is now offered by the peculiarity of the underground 
ownership. In my report, above quoted, I mentioned 40 acres as the size of the "square 
location," which would in many districts be necessary to effect this purpose. But that 
statement needs explanation and qualification. Let us first assume that the location 
is square in form. The tract of 40 acres is then 1,320 feet square. If the outcrop of a 
vein runs along one side of it, dipping into the tract— the most favorable case for the 
locator — the location commands 1,320 feet of the strike, and a distance on the dip indefi- 
nitely great as the position of the vein approaches the vertical, and diminishing as it 
approaches the horizontal, toward a minimum of 1,320 feet. Assuming, as an average 
case, the dip of 45°, the depth of vein within the tract would be about 1,867 feet, and 
the vertical depth at the point where it leaves the tract 1,320 feet. 

For many reasons, however, it is not to be supposed that square claims would be 
generally, or even frequently, so located as to carry the outcrop along one side. As- 
suming, then, as an average case that the location, of the form and size now under 
discussion, carries the outcrop through tbe center, and parallel with two of its sides, 
we have for a dip of 45° a distance on the dip, within the location, of 933 feet. This 
is not too much, if a single vein is taken into consideration ; and if a mining district 
is to be surveyed according to the present land-surveying system, with the square mile 
as a basis, and. meridians and parallels as the boundaries, and if such survey is to be 
independent of the course of the mineral deposits, and the mining locator or purchaser 
is to be obliged to choose his location among the squares thus defined, I think the 
square of 1,320 feet, or ^ of a square mile, is at once the most convenient and the 
smallest which can reasonably be fixed as the size of a claim. 

But I thought in 1869, and I think still, that the area of forty acres is too great to 
be accepted by the mining communities, and that the attempt to introduce it would 
cause much trouble, particularly in districts where several parallel veins might cross 
such a tract. But few prospectors (sixteen to a square mile) could get a foothold un- 
der such a system, and those few would occupy at the outset all the valuable mining 
ground. Prospecting would be discouraged, and the motive which supplies our new 
mining camps with the population absolutely necessary for a supply of labor, the es- 
tablishment of communications, &c, would be almost destroyed. 

Hence, I think the attempt to lay out the mineral land in fixed squares would not 



652 PUBLIC LANDS. * 

"be wise. If the claims were permitted to have, on the other hand, any form and posi- 
tion, a minimum width (or, better, a maximum length) and maximum area being pre- 
scribed, one-half the area of 40 acres would suffice to secure substantially equal advan- 
tages to the miner ; and this is the size which I venture to recommend. 

Judge Hallett, of Colorado, in an able review of this subject, addressed to your 
honorable commission, advocates the absence of restrictions as to form and position of 
locations, fixing the size as not exceeding ten acres, in any form not less than 100 feet 
wide at any point. This would permit a maximum length of 4,356 feet ; and cases 
might easily arise in which this length would be located. Given, for instance, a well- 
defined vein or bed, easily worked near the outcrop, and yielding above water level 
oxidized ores reducible cheaply, say, by amalgamation, it would be the interest of a 
locator to take up 4,356 feet by 100 feet along such a vein, with the intention of rob- 
bing its upper portion by an open cut, and then abandoning it. To encourage this 
would be to discourage systematic and permanent mining. Hence it would, in my 
judgment, be preferable to fix no minimum width, but a maximum length of location 
in any direction of 1,500 feet. This length would permit, for the area of 10 acres, a 
width of about 290 feet, which is, in my judgment, not enough. For the area of 20 
acres, the width for the maximum length might be 579 feet, which is sufficient to en- 
courage permanent mining. It is true that many, perhaps most, deep mines would 
extend beyond such a width. For the average case we have been considering, of a 
vein running through the center of the claim and dipping 45°, this width would give 
but 410 feet of mining depth ; but it may safely be presumed, as Judge Hallett re- 
marks in a letter to the Denver Tribune, that this point will be met by " the ability 
and disposition of capitalists to gather up a sufficient area for deep mining where the 
existence of valuable ore may be shown." In other words, a capitalist will buy the 
neighboring claim if he needs it. Judge Hallett, however, uses this argument in 
favor of the ten-acre claim. I submit that such a claim is too small to secure the nec- 
essary deep mining to satisfy the mine-owner of the permanence and value of the de- 
posit ; while, on the other hand, if a rich and valuable vein passes out of a claim of 
1,500 by 290 feet, it is likely to enter the adjoining claim at so small a]depth below the 
surface as to invite the owner of that claim to work it himself, or hold it at an exor- 
bitant price. Judge Hallett's proposed claim is less than one-half as large as the 
maximum now permitted by the United States law. The size which I suggest is 
nearly the same as the present maximum (1,500 by 600 feet). 

In all the suggestions which I have heard on this subject, it seems to have been 
taken for granted that no location should be made until after the discovery within it 
of " valuable mineral/' This phrase is vague enough, and the administration of the 
part of the law containing it is very likely to be a farce. If the condition could be 
removed without detriment to the public interest, the whole problem would be greatly 
simplified. So far as the government is concerned, it seems a simple proposition that 
if the government is willing to sell agricultural lands at $1.25 per acre, and mineral 
lands at $5 per acre, it would have no reason to object to sell the latter and take the 
money, leaving to the purchaser the risk of value. We do not ask the settler upon agri- 
cultural land to prove the fertility of the soil before we sell it to him. He pre-empts 
or buys at his own risk. We guard against monopoly of land, so far as we can, by 
limiting the size of the pre-emption claim. We can do the same thing to the same de- 
gree by limiting^ the size of the mining claim. In neither case can we prevent people 
who have the desire and the means from buying up farms, or land warrants, or min- 
eral land patents, and then working upon the property or not as they see fit. 

Under our present system, a patentee may allow his mining property to lie idle if 
he chooses. If he does so choose it is manifestly immaterial to the public whether 
there is really a mine there or not. But the locator, we ordain, must have found a 
valuable mineral deposit, and must bestow upon it, to maintain possessory title, a cer- 
tain amount of work annually. The only reason that I can discover for this rule is 
the desire to prevent a mere locator from holding without developing a piece of ground 
in which, otherwise, some one else might find a valuable mine. If the miuers were all 
owners under patents, we should, and safely could, leave the question of working or 
not working to their self-interest. Any mine that promised to be profitable would be 
worked or sold in the course of no very long time. The policy of the government, as 
I have explained, is to encourage prospecting as a preliminary to purchase; to induce 
prospectors and possessory owners, by every practicable means, to take patents, and 
to grant i>atents on terms so easy and for tracts so small as to favor the miner of lim- 
ited capital, It seems to me that these ends might be secured by a simple system 
like the following : 

Let mining locations be made anywhere on unoccupied public lands, whether any 
discovery of mineral has taken place or not. Fix the maximum area at 20 acres, and 
the maximum length at 1,500 feet. Allow the locator to occupy by possessory title for 
one year — adequate evidence of the boundaries of the location being maintained on the 
ground as well as in the record. Require a certaiu amount of work for each 100 feet 
in length of the location to be performed as a condition of relocation. At any time 






PUBLIC LANDS. 653 

during the year, if the locator applies for patent, sell him the tract. If he desires to 
continue to occupy by -possessory title, require him to give notice to that effect, to- 
gether with proof of the performance of the prescribed work, before the end of the 
year; and at the end of the year, unless some other party has, at least sixty days ftefore, 
made application to purchase, issue to the locator the certificate of his possessory title for 
another year, on the same conditions. But if application to purchase has been made 
by some other party, and not by the locator, then the latter, during the last sixty days 
of the year, may elect whether he will purchase or vacate the claim. In case no such 
application has been made, and the locator has not appeared before the close of the 
year with his proof of work done, let the claim be open to relocation by others. 

Under this system, the locator would occupy the position of a tenant, to whom the 
proprietor should say, "I will let you have this property for one year, with the option 
to buy it at any time at a nominal price. At the end of the year, if you have done a 
certain small amount of work on the property, I will let you have it for another year, 
unless a purchaser appears. In that case, I shall sell it — to you if you choose, or else to 
him. But if you neither buy nor improve the property, and no purchaser appears, I 
shall put somebody else in your place on the same terms as I offer you." 

Thus we should get clear altogether of the mineral deposit or lode as a unit, and 
base all proceedings on the land. The officers of the government, from the register 
and surveyor to the judge, would be relieved from the duties of mining experts, and 
geologists, chemists, and mining captains would no longer be called upon as witnesses 
to settle by hair-splitting distinctions the right of property. If any radical change in 
our mining law can be successfully made at the present time, I believe this plan would 
be as practicable as any, and more beneficial than any, which have come to my notice. 
If this, or something like this, cannot be adopted, then it seems to me that it would 
be wiser to amend in detail our present law, rather than attempt changes which would 
be revolutionary without being remedial. 

There are many points still needing discussion. Whether the lines of a location 
should be alterable by resurvey before application for patent (I would say, Yes ; the 
rights of neighboring locators being respected) ; whether a prospector should have any 
rights prior to a regular survey and record of location (I would say, Yes ; the right to 
stake off his claim provisionally, and to lose nothing by delay of the government offi- 
cer in making official survey— all this under proper regulations) ; whether a prospector, 
simply roaming over the public land, and finding " mineral," should have any right 
by virtue of discovery (I would say, No ; but his commencement to stake off or mark 
the boundaries of a claim should give him the inchoate right to that claim, to be per- 
fected, however, by continuing and finishing the proceeding) ; whether one year, as I 
have suggested, is the proper term ; whether sixty days, suggested in another place, is 
the proper term ; whether possessory owners should be notified, by advertisement or 
otherwise, of applications to purchase, at the end of their term, the claims they a,re 
occupying ; whether such notice should be given at the expense of the party acquiring 
the claim, or whether it is sufficient that these facts should be kept in accessible rec- 
ords, and the possessory owner obliged to consult the record thirty days ('or some other 
fixed period) before the end of his year, to discover for himself whether there is a pro- 
posing purchaser ; how far present possessory owners can be forced to take patents or 
to accept the terms of the new law (I fear nothing of this kind can be done so long as 
they obey the terms of the present law) — these and many other questions of detail 
arise ; but I cannot see in any of them difficulties which would constitute insuperable 
objections to the proposed system, or which would justify me in prolonging further 
these communications, for the length and diffusiveness of which I ought rather to offer 
my apologies. 

Yours respectfully, 

E. W. RAYMOND. 



APPENDIX C. 

INFORMATION AND STATISTICS GIVEN BY MESSES. HAGGIN & CARE EEL- 
ATIVE TO IEEIGATING THE FAEMS OWNED BY THEM IN KEEN COUNTY, 
CALIFOENIA. 

San Francisco, Cal., December 3, 1879. 
Dear Sir : I send you to-day reports of several engineers in my employment who 
nave been engaged in the work of reclamation. They will show for themselves. Also 
a tin case containing maps : Frist, a map of that portion of Kern County in which I am 
interested, embracing all the desert lands in that section and showing the various 
ditches ; second, maps A, B, C, D, which are referred to in Fillebrown's report and are ex- 
plained thereby. These are maps made from actual surveys, and are the various maps 
that the different members of -your commission desired. In the Fillebrown map, show- 
ing the checks, he has only put down the checks between two of the ditches, omitting 
the balance, as the map is on so small a scale that the blue lines would be very numer- 
ous and very close together if carried out. 

The reports are private reports and were not prepared for publication, but as I see 
no better way of giving to your board all the information it may desire, I send them 
to you to make such use of them as the board may deem proper. 
Yours truly, 

I. B. HAGGIN. 
Hon. J. A. Williamson. 

Commissioner General Land Office, Washington, D. C. 



Report of T. B. Fillebrown, engineer of Irrigation District No. A, dated November 25, 1879. 



Gentlemen : In accordance with your instructions I herewith submit my report of 
work performed under my supervision during the past year for the irrigation of the 
dry lands north of Kern River and below the line of the Calloway Canal, known as 
District No. 4. 

I.— CALLOWAY CANAL. 

Cost to April 1, as per estimate returned (W. H. Broad's contract) $61, 595 72 

Ranchero's wages and repairs for April, May, June, and July, as per check 
drawn in favor of E. M. Eoberts, ranchero 523 25 

Eepairs by Fred. Stineman, removing temporary dams, clearing out obstruc- 
tions, &c, as per amount placed to his credit on account of Belle View 
Eanch 165 60 

Earthwork by teams belonging to Belle View Ea^nch, April 1 to date , 2, 680 57 

Poso Creek Weir : 

Lumber, including freight and hauling ... $928 60 

Carpenters and laborers, including board 580 75 

Pile-driving, including board of men 303 50 

Hardware and nails 289 98 

Blacksmithing 72 00 

2, 174 83 

Engineering and superintendence 1, 025, 00 

Total cost to date, not including amount paid to O. P. Calloway 68, 164 97 

Note. — In addition to the foregoing there is about $10,000 paid to Calloway for 
work that he had done before Mr. Higgins acquired the ditch. 

Work is now in progress near the head of the canal, repairing and raising the banks, 
principally along the Kern Eiver Slough, the cost of which, not having been deter- 
mined, cannot be embodied in this report. 
654 



PUBLIC LANDS. 655 

II.— BRANCH DITCHES COMPLETE TO DATE. 

Ditches 20 feet wide, 6ff miles; cost $5,843 33. 

Ditches 16 feet wide, 50|! miles; cost 35,179 78 

Ditches 12 feet wide, 3f§- miles; cost 2,265 87 

Ditches 8 feet wide, 3§£ miles; cost 1,869 83 

Total length 64f& miles ; cost 45,158 81 

Engineering and superintendence . - 4,300 00 

Total cost, including head-gates and weirs 49, 458 81 

Average cost per mile 768 44 

Add 20 side-gates per mile, at $12 240 00 

Total cost per mile, including weirs and side-gates 1, 008 44 

The above ditches will irrigate 16,160 acres, making the cost of ditching per 
acre _ 4 00 

HI. — NUMBER OF ACRES CHECKED TO DATE. 

Number of acres checked to date, ready for cultivation, including work done 

on Poso Eanch and by tenants 5, 956 

Average cost per acre $1 64 

Cost per acre for waste-gates 51 

Total cost of checking per acre 2 15 

Total cost, ditching and checking per acre 6 15 

The Calloway Canal is constructed 80 feet wide on the bottom, with banks 5 feet 
high and 4 feet wide on top, with inside slope of four to 1 and outside 2 to 1, from 
Kern Eiver to Poso Creek, a distance of 30 miles, at which point the upper bank stops 
and connects with a levee extending up the banks of the creek to a point where the 
natural surface is as high as the top of the canal bank. A similar levee is built on the 
north bank of the creek, thus converting that portion of the creek into a pond or res- 
ervoir. In connection with the lower bank of the canal in the bed of the creek is 
placed a weir 150 feet in length, with wings at either end 20 feet long, extending into 
the banks. 

A plan of this weir is herewith submitted, marked A, an examination of which will 
better enable you to understand the nature of the structure and the duties it is ex- 
pected to perform. This weir is divided into 25 gates of 6 feet span each, from center 
to center of posts, so constructed as to be raised from the bottom by means of a chain 
passing round a windlass, which is turned by a movable iron lever. A bridge for 
horsemen is also provided on top of the weir. 

By this means the water .of Poso Creek is made available for irrigating the land 
north of the creek and for several miles south, the grade of the canal being so slight 
that the water from the creek may be backed up the canal for several miles. 

In case of very high water, which may occur during some winter seasons, these 
gates may alJ be raised, allowing the water to pass down the creek in its usual chan- 
nel. Should the canal and creek become partially filled with sand at their intersec- 
tion, 'which is likely to occur, by raising the gates of the weir a few inches and allow- 
ing a small stream to pass through the sand will be readily sluiced out and carried 
down the stream. 

This creek is entirely dry during a considerable portion of the year, but in most 
winter seasons carries quite a large volume of water for a short time, which water- 
will be utilized in the manner above stated, and added to the available supply for irri- 
gation of lands adjacent to the creek. 

North of Poso Creek the canal is at present extended but three-fourths of a mile to 
accommodate the tenants who have leased land on that side. This portion is but 160 
feet wide on the bottom, but is otherwise constructed the same as the other portion. 

The canal has a grade of eight-tenths of a foot per mile, which gives it a theoretical 
capacity of 894.7 cubic feet per second to the end of the eighteenth mile, at which 
point it is reduced to four-tenths, and is constructed upon that grade to the terminus, 
the diminished grade admitting of the canal being run upon a little higher ground, 
thus bringing more land within the reach of irrigation, and at the same time not ma- 
terially reducing the capacity of the canal, the taking out of each branch ditch hav- 
ing the effect of accelerating the flow, and at the same time diminishing the require- 
ments of the canal by the amount discharged by such ditch. 



656 PUBLIC LANDS. 

These branches, with a few exceptions, have been constructed 16 feet wide on the 
bottom, with banks 3£ feet high, intended for 3 feet of water, with slopes 3 to 1 and a 
grade of 1.6 feet per mile, giving to each a capacity of 196.5 cubic feet of water per 
second. 

The ditches are provided, at intervals indicated by the fall of the land, with weirs 
by which the flow is regulated and by which means the water may be held in any sec- 
tion of the ditch until it rises if necessary to top of the bank and is forced out through 
side gates (which will be more fully mentioned hereafter) on to the adjacent land. 

In adopting a grade for these branches I have not been guided by the quantity of 
water which might be required (a quantity very difficult to determine at present, for 
reasons which I will state further on), but have given them as rapid a grade as I 
thought the banks would stand without washing, judging from a limited experience 
upon this character of land. 

The descent of these lands to the westward being from 12 to 20 feet per mile, all in 
excess of the grade of 1.6 feet per mile is overcome by drops, each weir having a verti- 
cal drop of from 1£ to 4 feet, depending upon the descent of the ground. Should the 
velocity be found so great at this grade as to cause washing of the banks, each weir 
furnishes ready means of diminishing the grade, and consequently the velocity to any 
required degree. 

A plan of weir for 16-foot ditch, with 3-foot drop, is herewith submitted, marked 
B, and is made a part of this report. 

Levees or checks have been and are being built, extending from the bank of one 
ditch to that of another, following the contour of the ground, each check being on 
ground 1 foot lower than the preceding one, and built 1£ feet high, to make allowance 
for settling and yet hold the water until it rises to the base of the next higher check. 
Each check is provided with a waste-gate, and in some instances two, for draining the 
water off the ground above it on to that below when the former becomes sufficiently 
saturated. A side-gate in the bank of each ditch delivers water to the land above 
each check, thus giving to the tract of land between any two checks a supply of water 
from two ditches at the same time, besides the surplus water delivered through the 
waste-gate in the check above. / 

The accompanying diagram, on a scale of 5 chains to the inch, marked C, shows a 
section of the main canal, with a portion of two ditches, with weirs, gates, checks, &c, 
as actually constructed, and will render the system clear and easily understood. The 
same exhibit shows also a cross-section of the main canal and of a 16-foot ditch, also 
a profile showing a small portion on an enlarged scale, with water standing upon the 
ground. 

Persons who have irrigated land by this system, upon a small scale, state the annual 
expense of distributing the water at from 10 to 25 cents per acre. I am of the opinion 
that when the levees are thoroughly settled and the plans properly carried out it will 
be brought within the smaller figure ; admitting, however, that it may reach the max- 
imum of 25 cents, it will still compare favorably with the system of small ditches in 
use elsewhere, where the annual expense of irrigation ranges from 75 cents to $1.50 
per acre. 

The map marked D (scale 40 chains per inch), herewith submited, showing the three 
townships in which this system is being carried out, together with the three adjoining 
townships on the west, gives the correct location of the main canal through these 
townships and all branches constructed to date, denoted by a full red line ; also a 
small tract of about 350 acres of very uneven ground (mostly on sections 16 and 21, 
township 27, range 25) as it is checked ; and also the last, or most westerly check, 
now constructed between each two ditches — the lines denoting checks being drawn in 
blue. I have also drawn on this map dotted lines, showing approximately the pro- 
posed extension of these ditches. 

These last lines, of course, will be subject to many alterations upon a careful in- 
strumental survey, but they will serve the purpose for which the are alone designed, 
namely, to give a general idea of the number and extent of ditches necessary to be 
constructed to irrigate all the arable lands which may and should be embraced in 
this one system of irrigation. 

The ditches are located upon the highest ground, following the meanderings of the 
ridges wherever there is a material difference in elevation, but when the elevation to 
be gained by deviating from a straight line is slight and immaterial a straight line is 
of course preferable. 

By a glance at this map, therefore, it will be seen that, desirable though it may 
be for convenience in the cultivation and harvesting of crops to construct ditches 
and levees straight, and upon or at least parallel to the section lines, such location 
would be incompatible, in most cases, with a thorough, practical, and economical irri- 
gation of the land, and when it is understood that these levees are built with broad 
bases and consequently flat slopes, so that farming machinery may be easily driven 
over them, the difficulty in the way of working the land becomes, I think, more ap- 
parent than real. 



PUBLIC LANDS, 657 

In the location of branch ditches I have been annoyed in some few instances by 
being obliged to deviate from the proper line as indicated by the topography of the 
country to avoid trespassing upon the pre-emption, homestead, or other claim of some 
6heep-herder who has filed his claim upon £0 or 160 acres of land for the purpose of 
grazing the entire plain during the winter months, and whose claim invariably be- 
comes very valuable, in his own estimation, as soon as it becomes known to himthat 
it is in the way of the proper carrying out of any other enterprise. 

To segregate these lands into small ranches of quarter, half, or whole sections, either 
for purposes of lease or sale, to be bounded and defined by exact section lines, will 
conflict more or less with the proper carrying out of this system, which system I be- 
lieve to be for the lands of this character the most practical and economical which 
can be adopted. 

Should it be found necessary or desirable to make leases or sales by sections or ex- 
act subdivisions of sections, it will be necessary to construct division levees upon the 
section lines, whi^h will in some cases considerably increase the cost. 

You will observe that in stating the cost per acre 1 have not included the item of 
proportionate part of cost of main canal. This it is impossible to arrive at with any 
degree of accuracy until it is more fully determined how many acres can and will be 
irrigated from this canal. 

The number of acres in this district, between the canal and Goose Lake slough, is 
something over 200,000. To irrigate the entire district would, therefore, evidently 
necessitate a material enlargement of the canal, and, in all probability, an increased 
supply of water from the river. The acreage which will be irrigated, therefore, must 
depend mainly upon the extent to which these works are carried out, a question too 
broad in its scope to be more than alluded to in this connection. 

Attention has frequently been called to the question of increasing the available 
water supply of Kern River to meet the growing demand of this valley by the con- 
struction of mountain reservoirs. This is a question of vast importance, and is worthy 
of more close and careful consideration than it has yet received, from any one. 

The work of construction under my charge has demanded my entire attention and 
prevented my making any personal examination of this subject. I have been informed, 
however, by persons familiar with the mountain region through which Kern River 
flows, and in whose judgment I have much confidence, that there are small valleys 
along its course which may be converted into reservoirs of almost unlimited capacity, 
at comparatively slight expense, by the construction of dams across the narrow canon 
below. I can, of course, make no "estimate of the cost of such works at present, hav- 
ing no data to work from, but call your attention to the matter again in order that 
the importance and ultimate necessity of such works may not be lost sight of. I am 
not advised to what extent the State engineer corps has investigated this question, 
but presume it has not wholly escaped their notice. 

This land in this district in its present condition is very dry and porous, and will 
absorb a large quantity of water at the first irrigation, which quantity will gradually 
and very materially diminish with each succeeding irrigation. The fact that most of 
these lands have an underlying stratum of either hard-pan or clay, from 1 to 4 feet 
below the surface, gives some assurance that, after once thoroughly saturated, they 
will retain moisture longer, and therefore require less water than lands on Kern Island, 
or in most other portions of the San Joaquin Valley. 

You will observe also that the ditches already constructed have the capacity for 
discharging several times the volume of water that the main canal will carry. It must 
be remembered, however, that these ditches will seldom, if ever, be run to their full 
capacity, that they will not all be running at the same time, and that the crops de- 
pending upon them when they are running will not all require to be irrigated at the 
same time. The banks have* been built high, so that the water can, by means of the 
weirs, be held in any section of a ditch until it rises high enough to cover the highest 
ground adjacent to the ditch, upon which it is delivered through two or more side- 
gates ; which side-gates are so placed as to deliver the water first to the highest 
ground between any two checks, so that the high ground becomes partially irrigated 
by the running of the water over it, thus lessening the time necessary to keep the 
lower portions flooded. 

I have also had in view the ultimate deepening of the canal to a depth of 8 feet, ac- 
cording to your original intention, which has been very properly deferred, however, 
until such time as the further settlement and cultivation of the land shall call for a 
larger supply of water than its present dimensions will furnish. 

Returning again to the lands now ready for cultivation in the district under consid- 
eration, 1 will state more fully relative to the rented lands. In 1^77 you built five 
houses, barns, corrals, &c, in this district. These have been occupied since that time 
by thrifty farmers, raisins crops of wheat, barley, and some oats. Some fruit-trees 
have also been started at most, if not all, of the places. These ranches are all irrigated 
from the Calloway Canal by means of small ditches,and checks, but are not embraced 
in the tract upon which the general system of checks is being undertaken. Within 

42 L C 



858 PUBLIC LANDS. 

the last-named tract nothing was done in time for a crop last season, but work has 
been vigorously pushed forward for the last year, both upon the main canal and upon 
branch ditches and checks, preparatory to the coming winter's seeding. 

You have built upon this tract during the past year, besides the buildings upon the 
Poso ranch, twelve houses, barns, &c, for the use of tenants. These houses are two 
stories high and 18 by 35 feet on the ground, with a porch or verandah above and 
below, the entire length of one side. The barns are 30 by 45 feet, containing a gran- 
ary and stalls for 20 horses below and hay-loft above. Each ranch is also provided 
with a well-pump and horse-power. The depth to which wells have to be bored varies 
from 80 to 110 feet. The entire cost of house, barn, well, &c, for each ranch is about 
$2,000. The improvements, on the Poso ranch (section 3, township 27, range 25 east) 
consist of a house and well the same as built for the tenants, barn 45 by 103 feet, with 
granaries and stall room for 40 animals, with the addition of sleeping quarters for 
men, kitchen, dining-room, and blacksmith shop, costing in the aggregate something 
over $4,000. An artesian well is now being bored here, and has reached a depth of 
about 250 feet. No trials have heretofore been made in this district for artesian water, 
but as flowing wells have been obtained on Kern Island, to the southward, and at Tip- 
ton, only 30 miles north, it is hoped and believed that the experiment being made here 
will prove a success. 

These ranches are now occupied by farmers who came mostly from Tulare County, 
but some, I believe, from Stanislaus and Merced, where they had sown crops last year 
and lost them by reason of the drought. The branch ditches running to and through 
their ranches have been built by them under contract, you furnishing implements and 
paying them 5 cents per cubic yard of earth. This has given employment to their 
otherwise idle teams and men, and though the price will strike most earthwork-con- 
tractors as extremely low, the material being so light, dry, and easily moved, they 
have not only earned good wages for their men and teams, but have made a profit 
which has enabled them to purchase additional stock for carrying on their ranches. 
They have from 200 to 700 acres each now checked and ready for cultivation, the 
average being about 350 acres, while on the Poso Ranch your own force has checked a 
little over 1,700 acres. It is hoped that the present acreage of about 6,000 may be in- 
creased to 10,000 or more in time for seeding during the coming winter. The work of 
ditch construction has been partially suspended, the stock being needed to put in the 
crop on the various ranches. I have, however, 30 head of stock still necessarily engaged 
in hauling lumber and supplies, and between 60 and 70 men, including carpenters, 
laborers, and teamsters, engaged in putting in weirs and gates, my pay-roll at present 
amounting to about $120 per day. 

From the above you will see that I cannot at present give you a final statement of 
the actual cost per acre, with a view to fixing a price at which these lands may be put 
upon the market ; and I would suggest that your present system of leasing lands be 
continued until the works are carried far enough to determine this question more sat- 
isfactorily. 

The tenants now occupying these lands pay you a rental of one-fourth the crop, you 
building the ditches and delivering the water to the land without cost to them, and 
advancing them the necessary supplies while preparing the ground and putting in 
their crops. If you can afford to continue these terms you will find no lack of tenants 
to cultivate your lands. It has in fact been intimated by some of your tenants that 
they, being men of small means, would rather and could better afford to lease lands 
upon these terms than to purchase it at the rate necessary to cover the expense of 
canals and ditches, with the liability of further expenses from time to time for keeping 
up repairs, enlarging and extending works as may become necessary in the future ; 
while you, on the other hand, if you can afford to reclaim these lands at all, can better 
afford to retain the ownership until your plans are more fully developed than to dis- 
pose of a few small tracts, the separate ownership of which might impede such devel- 
opment by reason of a failure or refusal on the part of purchasers to co-operate with 
you. 

Very respectfully submitted. F. R, FILLEBROWN, 

Engineer Fourth District. 

Poso Ranch, November 25, 1879. 



Report of C. Brower, agent, and Walter James, engineer, of Irrigation District, No. 1, Kern 
Valley, dated November 25, 1879. 

Bakersfield, Cal., November 25, 1879. 
Messrs. Haggix & Carr, 

San Francisco, Cal. : 
Gentlemen : In compliance with your request for information concerning the avail- 
ability of the lands of this district, and the condition, cost, and progress of its works 
of irrigation, we have respectfully to submit the following report : 
The district is bounded on the north bv Kern River and the bluffs which skirt the 



PUBLIC LANDS, 659 

south bank of that stream ; on the east by the east line of range 28 east, Mount 
Diablo base and meridian of the United States survey, along or near which line the 
usually level surface of the valley breaks into the undulations of the foot-hills of the 
Tehachapa Mountains ; on the south by a line drawn east and west through the center 
of the basin known as Kern Lake ; and on the west by that branch of Kern River 
known as " Old River," which leaves the former stream at a point near the center of 
section 26, in township 29 south, of range 27 east, and runs thence in a southwesterly 
direction to a slough connecting Kern with Buena Vista Lake. 

The area of the district is, in round numbers, 120,000 acres. It comprises at once the 
most diversified body of agricultural lands in the valley, the most considerably im- 
proved, and the furthest advanced in the general system of irrigation works now in 
progress of construction throughout the valley, and, as well understood, wholly indis- 
pensible for vegetable productions of any description in this arid region almost desti- 
tute of rainfall. 

The lands of this district may be divided into three general classes : 1st, the re- 
claimed swamp and overflowed lands of the " South Fork," numbering upwards of 
32,000 acres, with their soil of dark loam thoroughly enriched with the vegetable de- 
cays of ages, upon which that invaluable forage-plant alfalfa thrives with unexampled 
luxuriance, and Indian corn and the various fruits of the temperate zone yield with 
surprising abundance ; 2d, the gently elevated table-lands further east, whose slight 
admixture of gravel adapts them most completely to the cultivation of the raisin- grape, 
the almond, and the various semi-tropical productions ; 3d, that body of lands, scarcely 
elevated above the reclaimed swamp-lands, and constituting the more extensive class 
of the lands of the valley, whose slight impregnation with silicious substances has 
proven them unsurpassed for the production of the cereals, as well as most excellently 
adapted to all the purposes of general agriculture. 

The various irrigation works projected and essential for the supply of this vast dis- 
trict, though under process of construction since the year 1870, and prior thereto, are 
still far from complete. They may be hastily enumerated in their present condition 
as follows : 

1. The " Kern Island Irrigating Canal," the oldest of the district and the most im- 
portant by reason of its superior location at the highest point on the south bank of 
Kern River, has a width of 48-J feet in the clear at its head-gate in the northeast cor- 
ner of section 17, township 29 south, of range 28 east, with a depth of channel of 4 
feet and a length of 18 miles ; of its branches the " Central," with a width of 20 feet 
on the bottom and a depth of 3 feet, running in a southerly direction and distant from 
one to two miles easterly from the main channel, is completed for a length of 8 miles. 
Its continuation has been projected for a further distance of 7 miles to Kern Lake. 
The town branch, for supply of the town of Bakersfield and the farming lands in its 
vicinity, is completed for a distance of 2 miles, with a width of 15 feet and depth of 2. 
The various distributing ditches connected with this canal and its branches have been 
treated mostly as burdens upon the lands which they severally supply, and are not 
borne on the books of the company ; their aggregate length may be stated approxi- 
mately at 35 miles. 

Besides the branches above mentioned, a third branch of this canal has been pro- 
jected, to pass easterly through the town of Sumner ; on the highest practicable line, 
to the easterly boundary of the district ; thence southerly, with an ultimate connec- 
tion with Kern Lake at its eastern extremity ; this branch to have a width of 40 feet 
and a general capacity sufficient to supply the table-lands before mentioned, number- 
ing upwards of 30,000 acres. 

The Kern Island Canal with its branches is calculated to supply all the lands lying 
east of range 27 east, as well as to supply through its several connections with the 
east branch of the " Stine Canal" such water as may be required by the latter, when 
available for the purpose. 

2. The "Farmer's Irrigating Canal." Head-gate located in the northeast quarter of 
section 24, township 29 south, range 27 east. Width 50 feet, and depth of channel 3 
feet. 

The length of the main channel is about 15 miles, consisting almost wholly of natural 
sloughs and water-courses, the principal of which is known as the " Panama Slough." 
It has 4 miles of branch constructions, varying from 10 to 20 feet in width, and about 

30 miles of distributing ditches. The duty of this canal and its branches is the supply 
of numerous small farms and communities of farmers scattered through the eastern 
and central portion of townships 30 and 31 south, of range 27 east. 

3. The " Stine Canal." Head-gate at the junction of Old River with Kern River. 
Width 80 feet, depth of channel 3 feet, and length 15 miles. This canal has an aggre- 
gate of 32.30 miles of branches, varying in width from 12 to 20 feet, and 4L} miles of 
distributing ditches. It shares with the Farmer's Canal the duty of irrigating the two 
townships last mentioned, besides supplying the easterly tier of sections in townships 

31 and 32 south, of range 26 east, and other lands in the southern portion of the district. 

4. The " Castro Ditch." Head-gate adjoining that of the Stine Canal, on the east. 



660 PUBLIC LANDS. 

Width 16 feet, depth of channel 2 feet, length about 5 miles. This ditch is intended 
for a limited field of irrigation in the northeasterly portion of township 30 south, of 
range 27 east. 

5. The " Panama Ditch." Width of head-gate, in section 14, township 30 south, range 
27 east, 10 feet ; depth of channel 2 feet ; length of ditch proper and its branches 8 
miles. This ditch derives its water supply through the " Panama Slough," in common 
with the Farmer's Canal. Its field of irrigation is so blended with that of the latter 
as to be inseparable therefrom. 

6. " South Fork." Head-gate in northeast quarter of section 17, township 29 south, 
of range 28 east. Width 26 feet, depth of channel 2 feet, and length about 3 miles. 
The distributing ditches connected with this channel have an aggregate length of 
about 7 miles, and are used for irrigating lands in the immediate vicinity of Bakers- 
field. The main channel is also used at times for the purpose of increasing the supply 
of the Kern Island Canal. 

Besides the canals and ditches above described may be mentioned five flowing arte- 
sian wells, located upon your lands at various points through the district, with depths 
ranging from 250 to 400 feet, and discharging from 3,000 to 10,000 gallons each per 
hour. Several additional wells are now under contract, and it is believed that the 
irrigation of the lands of the district may be greatly promoted through this means at 
comparatively reasonable cost. The wells heretofore constructed have cost an average 
of about $2,500 each ; but present contracts for boring are being let at the rate of 
$1,600 per well, with guaranty of flow. 

These canals and ditches having been the offspring of necessity, and constructed, 
without exception, by associations of farmers and owners of land for the purpose of 
rendering their lands habitable and possible of cultivation, rather than with any 
chimerical view to speculation in sales of water, the system has necessarily been 
hastened over a widely extended area at the expense of thoroughness of construction, 
and the channels are generally not opened to a capacity which the future will cer- 
tainly require, nor provided with the necessary works for controlling their current 
and preventing erosion. It will be impossible, therefore, at the present time, to pre- 
sent such a showing of the cost of the irrigation works of the district, even so far as 
now constructed and in use, as would enable you to apportion the cost among the 
lands of the district with any degree of uniformity for the purpose of establishing a 
selling price per acre. A most important objection, furthermore, to the offer of these 
lands before completion of the general system of irrigation works in its main features, 
at least with such changes in the general plan as may be found necessary from time to 
time as the work progresses, would suggest itself in the opening which such course 
would offer to a wearisome line of obstacles and annoyances through the contumacy 
or cupidity of individual land-owners of small interest who might stand in your way. 
It will be remembered in your experiences of the past that many such impediments 
have been met with, and removed only through the purchase of obstructing lands at 
exorbitant price. 

We would earnestly recommend that before such action be taken the irrigation sys- 
tem of the district be so completed as to place all of your lands with reasonable ac- 
cess to the water necessary for their irrigation, that the total cost of the works thus 
completed be apportioned pro rata among the benefited lands of the district, and that 
this apportionment be added to the intrinsic value of the lands, to determine the 
price per acre at which they may be offered in tracts, together with permanent inter- 
ests in the water-course by which they are severally irrigated. In our judgment this 
point may be arrived at during the coming year, and in the mean time we would re- 
commend that, if not too burdensome to you, the present favorable terms of lease of 
these lands be extended for another year. 

The marked success of your tenants during the past season has attracted toward 
these lands the attention of many persons who would without doubt become purchasers 
when the lands are finally placed upon market, but having no opportunity for remain- 
ing in the vicinity, their attention would probably be turned in other directions. Be- 
sides, many excellent men and families driven from other portions of the State and the 
States at our North, through the prevailing drought and absence of facilities for irri- 
gation in our interior valleys on the one hand, and the destructive results of excessive 
rainfall on the other, are finding their way hither, and as they will form valuable ac- 
cessions to onr community as well as future purchasers of lands, it would seem politic 
to extend such aid as might enable them to recover from former embarrassments and 
gain a footing in our valley. 

There are in present existence on your lands, at various points throughout the dis- 
trict, fifteen leases of class I, the tracts varying from one to three sections each. 
These tracts are each provided with a good two-story dwelling, large and commodious 
barn, granary, repair shop, and well. Lumber for fencing is also furnished free of 
charge, and such fruit-trees and vines as may be required for use of the occupants. 
The improvements of these tracts have been made at a cost of from $2,500 to $3,000 per 
tract. 



PUBLIC LANDS. 661 

There are also thirteen leases of class II, in tracts of from 320 to 640 acres ; the im- 
provements in this class consisting of a good one-story dwelling of five rooms, a barn 
with stable room for 16 horses, and a well in each instance ; costing in the aggregate 
from $1,500 to $2,000 per tract. Lumber for fencing, trees, and vines are also furn- 
ished this class as in class I. These leases run for a period of five years, and their terms 
are rent and water free during the first year, and, thereafter, one quarter of the crop 
for each of the succeeding four years. When necessary and desired by lessees, provis- 
ions, seed, feed, and implements are advanced to them during the first year, to be re- 
paid at their convenience during the term of the lease. Additional aid is extended in 
the offer to purchase their crops at the market rate if they prefer to thus dispose of 
them. 

These operations have given an unmistakable impetus to the development of the 
country, outside of your own improvements, as may be observed through the various 
buildings springing up in the district, noticeable among which are the fine residences 
of J. C. Crocker, esq., recently completed, and the equally imposing edifice of his 
brother, E. M. Crocker, approaching completion. These gentlemen are among our lead- 
ing citizens. They own some of the finest farming lands of the district, and propose 
to make it their permanent home. 

As before stated, the cost of the irrigation works of the district cannot be presented 
at present with completeness sufficient for your purpose, but for your general infor- 
mation such figures as we have are herewith presented, more or less accurate and in 
detail, according to the control or supervision whichjyour agents have been able to ex- 
ercise over the system of accounts and affairs of the various channels in which you 
have interests, to wit : 

Kern Island Irrigating Canal. 

Statement of cost of construction, repairs, $c, to November 20, 1879. 

Construction. Repairs. 

KERN RIVER DAM 

(In southwest corner section 9, township 20 south, range 28 

east.) 

June 15, 1875, to October 25, 1875: 
Labor and team-work (including subsistence, 

feed, &c.) $6,215 75 

Expenses (pro-rata services, W. H. Conther) 759 65 



1, 975 40 



Reconstruction, improvements, repairs, &c. : 
April, 1876, to April, 1878 : 

Labor and team-work 10, 587 36 

Property-account (implements and tools, camp- 
furniture, &c.) 136 06 

Material (lumber, hardware, &c. ) 346 15 

Expense (incidentals) 542 89 



$11,612 48 



Removing portion of dam: 
November, 1878 : 
Labor r 177 90 

HEAD SECTION. 

(From Kern River in southeast quarter of southwest quarter 
section 9, township 29 south, range 28 east, to head-gate 
No. 2, near northwest corner section 17, township 29, 28.) 

Canal-bed, cut of 1874 : 
February, 1874, to June, 1874 : 

Labor and team-work $6, 465 26 

Property , 15 75 

Material 261 52 

Expense 971 65 

$7,714 18 

Original head-gate No. 1 (northwest corner 
section 16, township 29 south, range 28 
east — removed) : 
August, 1874 : 

Labor and team-work $1,031 28 

Material 1,862 65 

Expense 253 22 

3,147 15 



662 



PUBLIC LANDS, 



Head-gates of November, 1875 (in canal 
and south fork, No. 2, northeast quarter 
section 17, range 29, 28) : 
November, 1875 : 

Labor and team-work $1, 827 09 

Material 841 12 

Expense 346 92 



Construction] Repairs. 



$3,015 13 



Eeclamation levee (between above-men- 
tioned gates and Kern River) : 
November and December, 1875 : 
Labor and team-work = 701 76 

Head-gate No. 1 and cut easterly (north- 
east quarter section 17 and southwest 
quarter section 9, townships 29, 28) : 
December 22, 1878, to March 16, 1879 : 

Labor and team-work $3,663 11 

Material 2,838 01 

Expense 114 89 

6,616 01 

Improvements, repairs, &c. : 
August, 1874, to November 20, 1874 : 

Labor and team-work 3, 277 42 

Material 479 43 

Property 20 00 

Expense 555 84 



$21, 194 23 



$4,332 69 



BLUFF SECTION. 

(From head section near northwest corner section 17, town- 
ship 29, 28, to mill section on north line section 19, same 
township, including drop and bridge at latter point.) 

March 10, 1877, to August 16, 1877 : 

Labor and team-work $14, 958 40 

Material 1,569 02 

Property 835 73 

Expense 1,293 85 

Improvements, repairs, &c. : 
October, 1879 : 

Labor 122 00 

Expense 4 00 



MILL SECTION. 

(From Kern Eiver, at head of Old South Fork, near northwest 
corner of northeast quarter section 17, township 29, 28, to 
head of construction of 1874, near south line of section 31, 
township 29, 28.) 

December 1, 1870, to August 22, 1871 : 

Labor and team-work $10, 511 93 

Material 3,369 20 

Property 605 65 

Expense 78 25 



Enlargements, improvements, repairs, &c, wing-dam 
on Kern River : 



July, 1873, to December, 1874 : 

Labor and team-work $401 25 

Material 7 25 



18,657 00 



126 00 



14 565 03 



408 50 



PUBLIC LANDS. 663 

Construction. Repairs. 

Clearing South Fork south of mill : 
November and December, 1877 : 

Labor and team-work $304 45 

Other improvements and repairs : 
September 27, 1871, to November 20, 1879 : 

Labor and team-work , $4, 181 89 

Material 816 95 

Property 152 75 

Expense 1,569 30 

— 6 720 89 

$7, 433 84 

CENTRAL BRANCH. 

Canal-bed and drops : 
October 31, 1877, to May 31, 1878: 

Labor and team-work $112, 249 04 

Material 3,118 27 

Property 608 56 

Expense 306 74 

16,282 61 

Drops of 1878-79 (3) : 
February 12, 1879, to March 17, 1879: 

Labor and team-work $476 93 

Material 326 42 

Expense 40 19 

. 843 54 

Drain-ditch : 
October, 1879 : 

Material $4 80 

Labor and team-work 243 08 

Expense 33 23 

281 11 

$17,407 26 

Repairs, &c. : 

March, 1879 to November 20, 1879 : 

Labor and team-work - 457 50 

Expense 25 37 

482 87 

LOWER SECTION. 

(From "Mill section" near south line of section 31, town- 
ship 29, 28, to Kern Lake.) 

February 25, 1874, to June 30, 1876 : 

Labor and team-work $20,704 58 

Material 1,056 10 

Property 291 51 

Expense 2,426 01 

$24,478 20 

Drops of 1878-79 (7) : 

December 18, 1878, to March 7, 1879 : 

Labor and team-work $1, 430 81 

Material 979 27 

Expense 120 58 

2,530 66 

27, 008 86 

Improvements, repairs, &c. : 
July 1, 1875, to November 20, 1879 : 

Labor and team-work $8,769 28 

Material , 2,328 23 

Property 513 25 

Expense 233 62 

. 11,844 36 



664 PUBLIC LANDS. 

TOWN DIVISION. 

Construction. Repairs, 

{Canals, ditches, &c, within and for the supply of Baker's 

field.) 

South Branch (L and 19th street southwest corner of town- 
ship.) 
May to October, 1872 : 

Labor and team-work $852 43 

Material 12 15 

$846 58 

M and 18th streets extension : 
May 4 to 29, 1875 : 

Labor $153 48 

Material 105 64 

$259 12 * 

Other ditches, gates, bridges, &c. : 

March 24, 1875, to June 30, 1875 : 

Labor and team-work $172 71 

Material 164 25 

Expenses 9 75 

$346 71 

— $1, 470 41 

Improvements, repairs, management, &c. : 

May 1, 1875, to November 20, 1879 : 

Labor and team-work $1,198 47 

Material 234 65 

Expense 587 97 

$2, 019 09 

Construction and repairs ^ 107,278 19 38,029 25 

MISCELLANEOUS. 

Of general application or specific application 
not to be determined : 
February 24, 1874, to November 20, 1879 : 

Material (lumber, hardware, &c. ) $385 87 

Property (implements and tools, See.) 1,372 25 

Eights of way (purchases and condemnations) 900 45 

Labor 479 95 

Salaries (July 1, 1873, to January 25, 1879). , 11, 504 15 

Rent (offices, July 1, 1873, to June 25, 1879) 1, 131 35 

Feed 75 34 

Team account (wagon repairs) 68 25 

Incidental expense 16,806 78 

32.724 39 

RECAPITULATION. 

Dam on Kern River $6,975 40 11,790 33 

Head section 21,194 23 4^332 69 

Bluff section 18,657 00 126 00 

Mill section 14,565 03 7,433 84 

Central Branch 17,407 26 482 87 

Lower section 27,008 86 11,844 33 

Town division 1,470 41 2,019 09 

107, 278 19 38, 029 25 

107,273 19 
32,724 39 

Total Kern Island Irrigating Canal $178, 031 83 



PUBLIC LANDS. 665 

FARMERS' IRRIGATING CANAL. 



Your interest in this' canal being limited, and its administration being 
in the hands of an association of the farmers whose lands it waters, the 
accounts of the company have not been kept in manner to enable us to 
present the cost of works in detail, nor can the necessary classification be 
now obtained. The cost of construction and repairs in gross is furnished 
us as follows : 

Expenditure upon mainline $16,095 00 

Expenditures upon branches 2, 737 00 



Repairs. 



$18, 83.2 00 



STINE CANAL. 

The early financial history of this canal is involved in more or less ob- 
scurity. It is now under supervision of your agents, however, and the 
expenditures upon it, so far as obtainable, are as follows : 

Construction and repairs of main line $44, 218 48 

Construction and repairs of branch No. 1 16,886 97 

Construction and repairs of branch No. 2... 12, 737 54 

Construction and repairs of distributaries 12, 028 57 

Construction in connection with Kern Island Irrigating 

Canal No. 1 537 01 

Construction in connection with Kern Island Irrigating 

Canal No. 2 836 89 



87,245 46 



CASTRO DITCH. 



A private ditch, the construction and repairs on which have been pro- 
vided by contributions without formality of accurate accounts. 

The cost is stated to be about > 2,000 00 



PANAMA DITCH. 



The remarks above made in connection with the Farmers' Canal will in a 
measure apply to this ditch. Its construction and repairs have been 
prosecuted with such irregularity of form aud accounting that an ap- 
proximation merely of the cost can be given, which is stated at about.. 6, 400 00 



SOUTH FORK. 



Until within a recent period no permanent accounts have been kept of 
the expenditures on this channel beyond those made by the Kern Island 
Canal for its own requirements. The addditional expenditures, includ- 
ing cost of head works, is probably not to be stated at less than 3,000 00 



Grand total... 295,509 29 

As shown before, the above figures are not strictly reliable. They present, more- 
over, a very inadequate idea at best of the expenditures already incurred in the dis- 
trict for the reason that scores of miles of branch canals and distributing ditches now 
attached to the various lands have been made by private individual and joint com- 
munities, without preservation of the accouuts or memoranda of their costs. These 
works assuredly should be considered a charge against the lands of the district in the 
final apportionment, and we see no method of arriving at a just estimate of their cost 
except through computation based upou actual survey. These additions, it may be 
contended, will so augment the grand result as to burden the lands to the point of dis- 
couraging purchasers ; but it will be remembered that the body of lands to be bene- 
fited is coextensive with the vast acreage of the district itself, which, by reason of its 
general uniformity of surface, contains practically no non-irrigable lands (to coin a 
word), and should an addition of even 50 per cent, upon the aggregate cost as above 
be reached with the final completion of the works the rate per acre would still prove 
insignificant in comparison with the value of the water rights attached to the land 
and the permanent advantages attending. 

Regretting our inability to report at this stage a degree of advancement in the irri- 
gation works of the district sufficient for your purposes, but trusting that under the 
present very satisfactory rate of progress such point may be reached at an early day, 
We are, verv respectfully, your obedient servants, 

C. BROWER, Agent. 
WALTER JAMES, Engineer. 

43 L C 



666 PUBLIC LANDS. 

Beport of W. H. Macmurdo, engineer of Irrigation Districts Xos. 2 and 3, dated Xovemoer 

25, 1879. 

Messrs. Haggin & Carr, San Francisco : 

Gentlemen : I herewith hand you a brief report of the results and effects of irriga- 
tion as carried out in district No. 2 for the past four years. 

District No. 2 comprises all lands west of Old Kern River, south of New Kern River, 
and north and west of Baena Vista Slough, being portions of townships 29, 30, 31, and 
32 south, range 25, 26, and 27 east of Mount Diablo base and meridian, and containing 
an aggregate area of 52,000 acres. 

. The general slope of the district is from northeast to southwest, with an average 
fall of seven feet per mile. The land is much diversified as regards the character of 
the soil. In the northern portion of the district the soil is composed of alternating 
strata of varying thickness of sand and alluvial deposits, containing but little clay 
in its composition until we approach the central portion of the district. Here the soil 
becomes more clayey in its composition, and so increases as we go south, until, on the 
southern portion of the district, we find the soil to be a stiff adobe. 

The district is supplied with water for irrigation purposes by the following principal 
canals and their branches: 

The Anderson Canal — Commencing in Kern River, near the center of section 26, 
township 29, range 27, Mount Diablo base and meridian, and running thence in a south- 
westerly direction about 4 miles, being 15 feet wide, 2-J feet deep, and having a dis- 
charging capacity of 75 cubic feet per second. This canal flows into Belle View ranch, 
which occupies the northern portion of the district, and is used exclusively for irri- 
gating that ranch. The canal was in a state of construction when it first came under 
my supervision, and has not been completed at the present time, owing to the impos- 
sibility of obtaining many accounts against the canal. I am unable to state the actual 
cost of construction. The same facts exist in regard to several of the canals named 
below. 

The Gates Canal. — Commencing in Kern River near the west boundary line of section 
26, township 29 south, range 27 east, Mount Diablo base and meridian, and running 
thence in a southwesterly direction about 2+ miles, being 12 feet wide and 2£ feet deep, 
and having a discharging capacity of 48 cubic feet per second. This canal also flows 
into Belle View ranch, and is used exclusively for the irrigation of that ranch. 

The Buena Vista Canal. — Commencing in Kern River near the east boundary line 
of section 33, township 29, range 27, Mount Diablo base and meridian, and run- 
ning thence in a southwesterly direction 13^ miles, 30 feet wide and 3 feet deep, and 
having a discharging capacity of 216 cubic feet per second. This canal flows through 
the Belle View ranch and the greater part of district No. 2, and is owned by 
yourselves and many farmers who own land in their own right in the southern and 
central portion of this district. The capital stock is divided into 2,600 shares. Of 
these 2,600 shares 1,000 belong to the individual farmers who possess farms in this 
district. These farmers have constructed numerous branch ditches of various widths 
and dimensions from the main canal to their lands, and are usiug the water on these 
lands with good results. 

Of the amount of branch ditching, &c, done by these parties and cost of construct- 
ing such works 1 am unable to make any definite statement at present. The cost of 
constructing the main canal and head-gates and weirs and keeping the canal in good 
repair and condition to date is $26,125.36. 

The James Canal. — Commencing in Kern River near the east boundary line of section 
33, township 29, range 27, Mount Diablo base and meridian, and running thence in a 
southwesterly direction 17£ miles, 60 feet wide the first three miles and 40 feet wide 
the remaining distance, being 3 feet deep, and having a discharging capacity of 396 
cubic feet per second. This canal flows through the Belle View ranch, and besides 
furnishing an abundant supply of water for the irrigation of this ranch, it supplies 
water to the greater portion of the southwestern part of district No. 2, and is owned 
exclusively by yourselves. From the books and accouuts of the secretary I find that 
$16,600 have been expended in the construction of this canal. This does not include 
the cost of lumber for weirs, &c, and is below the actual cost of construction. 

The Plunkett Canal. — Commencing in Kern River near the center of section 33, town- 
ship 29, range 27, Mount Diablo meridian, and running thence in a southwesterly di- 
rection through Belle View ranch, being 3f miles loug, 12 feet wide and 2$ feet deep, 
and having a discharging capacity of 45 cubic feet per second. The water from the 
canal is used and belongs exclusively to Belle View ranch. 

The Meacham Canal.— Commencing in Kern River near the northwest corner of sec- 
tion 6, township 30, range 27, and flowing thence through the Belle View ranch in a 
southwesterly direction nearly 4 miles, 12 feet wide and 3 feet deep, having a dis- 
charging capacity of 48 cubic feet per second. 

The Wilson Canal. — Commencing at a point near the head-gate of the Meacham Ca- 
nal on section 6, township 30, range 27, and flowing through Belle View ranch 2-J 



PUBLIC LANDS. 667 

miles in a southwesterly direction, 5 feet wide and 21 feet deep, having a discharging 
capacity of 18 cubic feet per second. 

The last two canals named above belong exclusively to parties owning land west of 
Belle View ranch, and are used to irrigate lands now being farmed by themselves. 
I am unable to make any statement of the cost of these canals nor the amount of 
branch ditches constructed by them. 

The Henley Canal. — Commencing on the northeast quarter of the southeast quarter 
of the southeast quarter of section 9, township 30, range 26, running thence in a south- 
westerly direction about 24 miles, 3 feet wide, 2 feet deep, and having a discharging 
capacity of 10 cubic feet per second. 

The Frazier Canal. — Commencing in Kern River on northeast quarter of section 16, 
township 30, range 26, and running thence in a southwesterly direction about 2} miles, 
5 feet wide, 14- feet deep, and having a discharging capacity of 18 cubic feet per second. 

Weirs. — On section 33, township 29, range 27, near to and below the head-gates of 
the Buena Vista Canal and the James Canal a weir 150 feet wide and 20 feet long has 
been constructed with arrangements so constructed that the water in Kern River can be 
forced inro these canals, and the sand which has a tendency to deposit in front of the 
head-gates can be sluiced out and allowed to pass down the river instead of flowing 
into the, canals at a cost of $1,600. 

On section 1, township 30 south, range 26 east, a combined weir and bridge, 400 feet 
in length, and 24 feet in width, has been built at a cost of $7,000, and serves the same 
purpose of the one just described. Both of these weirs are so constructed that the 
whole interior parts can be removed at short notice, and allow the water to flow in its 
usual channel without obstruction. A plan of the above described works can be seen 
and their object better understood by examining the plat of Belle View ranch in- 
closed with this report. A plan of the weirs used in the principal irrigating canals can 
be seen and understood by glancing at the plat of the MoCluug ranch accompanying 
my report on district No. 3, and marked <f A plan of weirs in the Pioneer Canal." Such 
a weir costs about $75. 

It will be seen by the foregoing description of the principal canal that their total 
length is about 51 miles; their aggregate discharging capacity 832 cubic feet per 
second. This amount of water if evenly distributed over the whole district would be 
sufficient to cover the district, 52,000 acres, 20 inches deep in 1,258^ hours, about 53 
days, which would in effect be equal to 20 inches of rainfall. But it has been fully 
demonstrated from experience and practice that to insure a crop of small grain on any 
part of the northern portion of this district (No. 2), 30 inches of water in depth is 
necessary the first year, as the hard-pan or clay strata are so far beneath the surface 
that the water sinks down and drains off toward the lakes. 

Owing to the depth of the substrata, it has been found most expedient to irrigate 
the northern portion of district No. 2, especially the tract known as the Belle View 
ranch, and occupying the whole northern part of this district (and so shown on the gen- 
eral map of Kern County), to run the water over the surface by means of numerous 
small ditches, and not by means of the system adopted in district No. 4, where the 
hard-pan is only a few feet below the surface, and consequently holds the moisture 
near the top. 

This system of irrigation, by means of small ditches, has been found very expensive, 
as it requires the constant attention of many hands, but it has some advantage over 
the method of irrigating district No. 4. 

1. In regard to economy of water. — Water can be caused to flow over the lands in 
this part of the district, wetting the ground a foot or more in depth, whereas if checks 
were constructed, as in district No. 4, it would require a much longer time to fill the 
checks and consequently would require a much larger amount of water, as it would 
soak or sink in the ground in proportion to the time occupied in filling, and all water 
sinking below a certain depth is, in great measure, lost. 

2. Economy of cultivation. — The northern portion of the district is very uneven and 
rolling and would necessitate the construction of checks so near together that they 
would materially interfere with the economical working of the land. 

3. Injury to crops. — The land being uneven aud rolling, the high portion of the field 
would soon drain off and become dry, while the low places would become too wet, 
thereby producing rust and diminishing the yield of the crop. 

It has been found by practice that it is best to run water over the higher parts of a 
field and allow the low places to irrigate from seepage, as far as possible, thus obtaining 
a better result and materially reducing the average cost per acre of irrigation. 

In the year 1875 water could be reached at a depth of from 8 to 12 feet below the sur- 
face of any part of the Belle View ranch ; instead of rising nearer the surface from 
effect of using such large quantities of water during the past four years, as would be 
naturally supposed, it has in fact changed but little. This is probably due to the fact 
that the underlying strata have a declination toward the lakes sufficient to drain the 
water from the northern portion of district No. 2. 

I inclose a plat of Belle View ranch (occupying the northern part of this district). 



668 PUBLIC LANDS. 

Farming operations have been confined chiefly to this tract. The plat shows a large 
part of the land cultivated in this district, also the manner of distributing water by- 
means of small ditches, and plans of head-gates and weirs. 

The different kinds of crops are designated by means of colors, the principal crops 
being wheat, barley, and alfalfa, though many different kinds of crops have been cul- 
tivated with success. 

Cotton and rice have been successfully grown, and preparations are now being made 
for the more extended cultivation of rice. Flax, tobacco, and other crops have done 
remarkably well. Oranges, lemons, -and many semi-tropical fruits are in a flourishing 
condition. The grapes raised in this district cannot be surpassed by any section in 
the State. All the ordinary varieties of fruits are doing remarkably well." 

The yield of all crops has been good, notwithstanding the unusual dry seasons, and 
a marked increase in the fertility of the soil has been the invariable result wherever 
irrigation has been carried on. 

It will be seen by the plat that a large area is seeded in alfalfa. This crop requires 
but little water after the first year, the deep, loose soil of this district seeming partic- 
ularly adapted to its wonderful growth, which has often reached the height of eight 
feet in a few months. In soil of this description the roots of alfalfa reach down from 
12 to 15 feet, and at this depth find sufficient moisture to support it through the 
driest seasons. 

4 Artesian wells. — On the southern border of this district two flows of artesian water 
have been secured. On section 11, township 31, range 25, Mount Diablo meridian, at 
a depth of 385 feet a flow was obtained furnishing 3,000 gallons per hour. This well 
is cased from top to bottom with a double 8-inch iron pipe. 

On section 17, township 31, range 26, a well similar in description, 295 feet deep, 
flowing about the same amount of water per hour, has been obtained. 

district no. 3. 

District No. 3 comprises all lands lying north and west of Kern River, north and 
east of swamp-land district No. 121, and south of Goose-Lake Slough, and includes 
portions of townships 27, 28, 29, and 30 south, ranges 22, 23, 24, 25, and 26 east, Mount 
Diablo base and meridian, containing an aggregate area of 63,000 acres. The general 
slope of the district is from southeast to northwest, with an average fall of 2£ feet per 
mile. 

District No. 3 is composed of several distinct qualities of soil, the eastern portion 
Toeing similar in character to the northern portion of district No. 2, while the southern 
and western sections correspond with the description of the southern portion of dis- 
trict No. 2. 

District No. 3 receives its supply of water for irrigation purposes from the following 
principal irrigating canals and their branches, viz : 

The Railroad Canal. — Commercing in Kern River, near the southwest corner of sec- 
tion 31, township 29, range 27, Mount Diablo meridian, and flowing thence in a north- 
westsrly direction about 3,000 feet, at which point it discharges into Goose Lake 
Slough and flows to the extreme northwestern part of the district. This canal is 40 
feet wide in the bottom, 2 feet deep, and has a discharging capacity of 160 cubic feet 
per second. 

The Wible Canal. — Commencing at Kern River, near the northwest corner of section 
6, township 30 south, range 27 east, and running thence in a northwesterly direction 
about 1,000 feet to the point of intersection with Goose Lake Canal, thence in the 
Goose Lake Canal to the point at which Goose Lake Canal discharges its waters in 
Goose Lake Slough, and from this point through the channel of Goose Lake Slough to 
the lands along the northern border of this district. The Wible Canal is 40 feet wide, 
2 feet deep, and has a discharging capacity of 222 cubic feet per second. 

It is in possession of farmers owning land in the northern portion of the district, 
who have constructed many branch ditches and checks, and has been successfully 
operated for the past three years. I am unable to state the cost of the main caual or 
branches, &c, as the work has been entirely executed by other parties. 

The Goose Lake Canal. — Commencing in Kern River, near the northeast corner of 
section 1, township 30 south, range 26 east, Mouut Diablo meridian, and runs thence 
in a northwesterly direction about 4| miles, at which point it discharges into the Goose 
Lake Slough, and flows thence in the channel of Goose Lake Slough along the entire 
northern border of the district, and is taken out at different points along the slough 
in canals and ditches to irrigate lands in the central portions of the district. This 
canal has a bottom width of 140 feet, and a depth of 3 feet, with a discharging capac- 
ity of 1,050 cubic feet per second, and has been constructed at a cost of $9,000. 

The Pioneer Canal. — Commencing in Kern River, near the northeast corner of section 
1, township 30 south, range 26 east, and running thence in a westerly direction 11| 
miles, and has a bottom width of 60 feet, with a discharging capacity of 450 cubic feet 
per second, and has cost to construct to its present capacity $43,949.87. 



PUBLIC LANDS. 669 

It is contemplated to complete this canal to the northwestern portion of this district, 
to irrigate the lands bordering on swamp-laud district 121 and Goose Lake. It is now 
in successful operation through the eastern and central portion of the district from 
the point of diversion from Kern River on the east to section 13, township 30 south, 
range 24 east. 

The Pioneer Canal is divided iuto 2,400 shares. Of the 2,400 shares 350 shares belong 
to parties owniug laud in this district, and the water represented by them is used for 
the successful cultivation of their farms. They have built branch ditches and checks 
from the main canal to their lands with good results. 

This canal Hows through the entire length of the McClung Ranch, and is used for the 
principal irrigation of that ranch. I iuclose a plat of the McClung Ranch, showing 
the route of the main canal and the many branches, &c. 

The James and Dixon Canal. — Commencing in Kern River, on section 3, township 30 
south, rauge 28 east, aud running thence iu a westerly direction fro about 3 miles, 30 
feet wide and 3 feet deep, and having a discharging capacity of 240 cubic feet per 
second. It is used upon the McClung Ranch and the lands west of the McClung 
Ranch. , 

The Johnson Canal. — Commencing in Kern River, on section 6, township 30 south, 
range 26 east, and running thence in a southwesterly direction about 4 miles, 30 feet 
wide on the bottom, and 3 feet deep, having a discharging capacity of 240 cubic feet 
per second. The Jonhsou Canal is owned by several different parties who own small 
tracts of land iu the southern portion of this district, and is operated and used exclu- 
sively by them. 

Ashe's Canal. — Commences in Kern River, on section 3, township 30 south, range 28 
east, and runs thence in a westerly direction about 1 mile, 8 feet wide, aud 2 feet deep, 
having a discharging: capacity of 24 cubic feet per second. It has been constructed 
and used by Mr. J. R. Ashe upon his farm upon section 10, township 30, range 26 east. 

May's Canal. — Commences on section 18, township 30 south, range 25 east, aud run- 
ning thence in a westerly direction through sections 13, 14, and 15, township 30 south, 
range 25 east, 8 feet wide and 2 feet deep, having a discharging capacity of 36 cubic 
feet per second. 

The Joice Canal. — Commencing in Kern River, on section 23, township 30 south, 
range 25 east, and running thence in a northwesterly direction about 4 miles, 12 feet 
wide and 2 feet deep, having a discharging capacity of 48 cubic feet per second. This 
canal was constructed with a view of irrigating the southern portion of district No. 3, 
especially the Bueua Vista Ranch, which occupies nearly the entire southern portion 
of this district and has been iu successful operation for the past five years. 

By means of this canal, its branches and checks, the Buena Vista and adjoining 
ranches have been brought under cultivation at a comparatively small expense. From 
the annual report of the superintendent of the Kuena Vista Ranch and accurate ac- 
counts of farmers owning adjoining lauds, it has beeu ascertained that it only costs 10 
cents per acre to irrigate land in this section of this district after constructing the 
ditches and checks. 

It will be seen by the plat of the McClung Ranch that the same system of irrigating 
by small ditches has been adopted. This is owing^ to the same reasons given in my 
report on district No. 2. 

The yield of all crops on the McClung Ranch has been good, and the soil shows the 
same evidence of increasing fertility from effects of irrigation. 

Near the present terminus of the Pioneer Canal (and central part of this district) 
ranches have been laid out, houses, barns, and all necessary outbuildings have been 
built at an average cost and. expense of about $2,000 for each ranch. These ranches 
are leased to tenants on the most favorable terms. 

The combined bridge and weir mentioned in my report on district No. 2 serves the 
purpose of controlling the water in the Railroad, Wible, Goose Lake, and Pioneer 
Canals. 

This report is respectfully submitted for your approval, hoping that you will find 
the results and operations of the past four years will justify you in continuing the 
development of a larger territory that has for years remained a barren waste. 
Very respectfully, 

W. H. MACMURDO, 
Engineer of Second and Third Districts. 

Belle View Ranch, November 25, 1879. 



San Francisco, October 10, 1879. 
August E. Gantz, United States deputy surveyor, made the following statement : 
I have been connected with the surveying department of this State since 1872. I am 
by education and profession, however, an engineer, surveying being but a slight por- 
tion of that. 



670 PUBLIC LANDS. 

I will assume that, in consequence of the recommendation which you have made' 
the rectangular system will hereafter form the principal way by which we get at quan- 
tities for the purpose of disposing of the lands. It may be done in conjunction with 
other more scientific methods, but anyway I will assume that the rectangular system 
remains. The question then arises how to carry it into effect. It can be done direct 
through Washington — done something similar "to what is being done now by having 
surveyors-general,or persons intrusted with the same duties under different names. I will 
also assume that hereafter the surveyors-general, or whatever their name shall be, will 
be absolutely competent men — professional men, that besides knowing all about land 
entries, &c, could also if called upon make an accurate survey themselves. More than 
this, they ought not to be political appointments. If they are political appointments 
what is there to prevent the deputies from also being political appointments. There is the 
root of the evil. Leaving the surveyors-general themselves out of the question, somebody 
must be a professional man. If the surveyor-general is not, then the deputy has got to 
be a professional man. At present, under the present system, the system works abso- 
lutely in the direction of swindling and corruption. If it had been invented for that 
purpose it could not have been invented better. To-day Mr. Jones wants a contract. 
Mr. Jones says he is a surveyor. Mr. Jones don't know the surveyor-general, but he 
knows some prominent politician who gives him a letter to the surveyor- general. He 
is required to step up to the chief draughtsman, who asks him a few questions, but 
before these questions are asked he is informed that a prominent politician has recom- 
mended him, and these few questions are a farce and do not amount to a row of pins, 
are probably entirely immaterial and do not go to the gist of the thing at all, and the 
gentleman comes down again and the surveyor-general is informed that he has been 
examined. I have undergone such an examination myself and know what it is, and 
that examination I had to undergo when it was intended to throw me out, and so it 
was severer than usual. This man takes the contract. He takes it at the present 
ridiculously low rates. The present rates and present requirements are entirely out 
of proportion. The present rates are not within 100 per cent, of what is required to 
carry out the laws properly. Anybody who takes a contract at the present rates does 
so knowing that he cannot carry out the laws. It is so understood, and when he 
comes back from the field it is so understood, and they say, " He has done the best he 
can/' 

This man is supposed to carry out the work " in his own proper person." These 
words were put into the contracts because heretofore contracts were absorbed by one 
or two men, and they "subbed" it out among half a dozen different parties, and the 
work was done loosely and it was not good work; and yet no deputy is supposed to 
have more than he can do personally within one season." The system is improved in 
that respect theoretically. You will find that the deputy who don't understand 
anything about his work during the first or second year gets some other deputy to 
come and help him, and that other man who does the work does not appear at all. 
The deputy getting the contract hires a man to do the work. He gets a competent 
man. In this particular respect I know it is being constantly done. I have not done 
it, but I have always felt that I worked at a disadvantage. There has been an incli- 
nation to be lenient in that respect, and so that as long as a deputy was in the field 
himself with a party and directed "the work, even if the instrumental work was done 
by another man under his direction, that constituted what the contract calls "in his 
own proper person." It has been so construed by the present surveyor-general. I 
have always held that it was too lenient a construction. In fact, I have gone so far 
as to ask the Attorney-General of the United States, and he was, of course, not en- 
titled to give me an answer that might afterwards come back to him for adjudication ; 
but the construction of the surveyor-general is that as the work was done under their 
direction that was sufficient. I think that is a wrong construction. That direction 
requires continuous presence in the field ; but I hold that there was no possibility of 
any proof being adduced of such continuous presence in the field, and those who con- 
strue the contracts in that way have a vast advantage over those who did their own 
instrumental work. Some cases in point are surveys made in the vicinity of Colorado 
River. I know positively that these surveys were made by parties that were in charge 
of compass-men only. I "spoke of the case," and inquiries developed the fact that these 
compass-men had been employed only part of the time, and then under the supervision 
of the deputy. I then tried to prove that these compass-men had been in the continu- 
ous employ of the deputy for three years ; but that proof was not called for, so I have 
never given it. 

Heretofore a great evil was the collusion between the surveyor-general and the depu- 
ties. In the case of Mr. Hardenburg, the Dyers were the well-known men through 
whom the work was done. Then after Mr. Hardenburg was dismissed Mr. Strattou 
was appointed and the same "color in blue" continued. The name was changed but 
the appropriation was again absorbed by certain men. These certain men manage 
to continue, and exist to this day. They continued in lesser degree through the ad- 
ministration of Lawrence and Ames, and when the present surveyor came in he found 



PUBLIC LANDS. 671 

the present state of affairs. He found that these deputies were accused of being mem- 
bers of a ring. Mr. Wagner's appointment was a vast step in advance. 

As a remedy for all this I would suggest a positive examination by competent men. 
I would constitute a board of examination. I would not execute our work by the 
same method which the Coast Survey employ. We cannot offord it. I would not do 
that. The remedy is competent men and tenure of office. 

Establish a corps of engineers under the surveyor-general. First make him as com- 
petent as possible, then have your competent men under him ; give them a fixed salary 
and have them gentlemen. 

As far as technical matters are concerned we are behind. The present surveyor- 
general is no doubt 100 per cent, better than anything we have had for a long time, 
but the very system under which he exists, the source from which he derives ulti- 
mately his power, that is, the appropriation of Congress, everything joins to bring him 
back again in the same old grooves, the same old ruts. He is constantly beset by the 
same old political associates. In this case I have reason to believe that the surveyor- 
general was selected because Mr. Schurz thought him the best man for the place, and 
not upon the recommendations of any political friends, and I am satisfied that the 
work is largely better than it was done before for a long time. The "confirmation 
business" operates in this way, that they consider themselves under obligations to 
those who do not oppose their confirmation. There was opposition expected to Mr. 
Wagner's confirmation — a good deal of it. 

If there is any way by which at least the subordinates of the surveyor-general could 
be selected with reference first and foremost to their competency and without refer- 
ence to their greater or lesser political influence, there should be same way by which 
every competent man who has no political influence might be selected as a deputy. 

Sometime ago the surveyor-general received permission to pay for employe's out of 
the subdeposit fund, and an additional amount of bood, I think $125,000, was re- 
quired. Now, Mr. Wagner is comparatively an unknown man in San Francisco, and 
he had trouble to get that bond. The principal rich men in San Francisco are not his 
friends, so the present chief clerk busied himself in runniug about getting the bond 
for him. And now, to show the inconsistency of the thing, Mr Wagner told me shortly 
after we had that conversation in which he said he was going to get along without a 
chief clerk, in speaking of Mr. Rickard, " He has not invented gunpowder, neverthe- 
less he is an honest fellow." But the pressure of the friends who had furnished the 
bonds was great enough, notwithstanding that he thought he was not very bright, and 
notwithstanding that he had told me he would have no chief clerk — that the law did 
not know of any such position as chief clerk— notwithstanding all this, there was pres- 
sure enough to compel him or induce him to appoint that gentleman chief clerk. 
There were two contradictory statements for you. 

Mr. Wagner abolished the abominable corruption of " extra work." Now, when there 
is extra work done the amount is paid into the Treasury, and the draughtsmen paid 
out of that. I do not know whether that is done now, but certainly Mr. Wagner 
started in with the best endeavors and intentions. 

Q. If the surveyor-general should order the work to be done in the ordinary office 
hours, it would be done, would it not ? — A. It is hard to tell. The clerical force is in- 
sufficient ; but if a person comes in there and offers to pay for that extra work, it is 
done quick. That money ought to be paid into the Treasury, and then the draughts- 
men paid out of it. 

Q. Are not any of the draughtsmen now authorized to do work ont of office hours, 
and take the money themselves ?— A. No. That was the old rule. If it were not liable 
to such abuse it would be proper, but you cannot control it. It results in irregular 
work, and work bein<r done without being paid for. The extra-work charge was abol- 
ished by Mr. Wagner, or properly I should say it was abolished, for in fact I do not 
know whether it is. There is another thing. If you wish to insure prompt work, you 
ought to pay them promptly. Prompt payment insures prompt work. 

Q. Is the office kept open" after office hours? — A. Not to my knowledge is the office 
kept open after office hours, and nobody, to my kuowledge, is worked after office 
hours. If anybody, without the knowledge of the surveyor-general, does work — ex- 
tra work — and takes pay from individuals, he is now doing it in office hours ; he has 
no right to take work home. Men want to have a motive for working — they want 
their pay — I speak of the ordinary salaries of the office. In the first place, the salaries 
are paid quarterly ; then the vouchers go to Washington, and then from one place to 
another until they get into the Treasury Department. I know of cases where salaries 
are not paid until six months after they "are due — even a year after they are due— in my 
case, for instance. I have worked during the months of August and September, and. 
have been engaged in surveying ranges at a per diem, and the expenses would not be 
covered by mileage at all. The necessary and actual expenses come out of my pocket, 
in the first place, and are afterwards refunded. I w r orked in August and September. I 
have rendered my account and I expect to have the money for this work in about three 
months, not for my services, but money that I have actually advanced to the govern.- 



672 PUBLIC LANDS. 

ment. Our contract states also that we are not allowed to do any private work within 
the territory covered by our contracts. Now, as far as I myself am concerned, I have 
steadily refused to take contracts. I have taken no contracts ; but this provision is 
daily, hourly, constantly violated, and lands are picked out — townships are selected 
with that very purpose in view— to get those townships where the most private work 
is to be done. Of course, when a gentleman tells you, as he did to-day, that the work 
cannot be done at the present rates, and after he tells you the work cannot be hon- 
estly done — under the rates, it is impossible to do it, and he knows before taking the 
contract that he cannot do it for you— his reason for taking the contract must be the 
opportunities for private work, and that he intends to get the money without doing 
the work. 

Q. 13. Is it a fact that more or less contracts are let to men who hire men to go into 
the field and never themselves leave this city I — A. It is a matter of fact that there ex- 
ists to-day in this city a force that acts as middlemen between the deputy surveyors 
and the men in the field. Benson & Co. have a little manufactory of field-notes. They 
have rubber stamps cut out for each set topographic phrase. The business of that 
office is the making out of field-notes for parties in the field. It may be done to ex- 
pedite business. The thing is possible. J. A. Benson is known to be\a very good man. 
I taught him what he knows about the business in 1872. He is known to be on good 
terms with everybody, and there is a league in Washington, because Mr. Benson is in- 
formed from Washington before anybody else here. I will cite a case. This gentle- 
man is known to be on good terms with everybody. Now, if an inexperienced man gets 
into any dilemma he gets a little hint from somebody that the best thing he can do is 
to go to Benson's and he is all right. He makes his survey. If he can't get along, he 
sends for one of that firm to help him (as has been done), and the gen tie ni an then 
makes out the field-notes and charges so much per township. This man has a direct 
interest in having as many incompetent men appointed as deputies as possible, because 
competent men can do their own work just as expeditiously as he can. My field -notes 
when I come home are ready to be copied, but I use abbreviations and I write hastily. 
I perhaps cannot lay my book flat, it looks bad, and in such a case I am the last man 
to copy them. 

Q. If a survey was made in Shasta you do not send a man from here, do you ? — A. 
Yes; sometimes they do that. Now, there has been somebody behind the throne. I 
have been approached within the last few months and asked to " let up." We are now 
working 100 per cent, better than we ever did; but there is still a great deal of im- 
provement possible, and the principal improvement is competent men, tenure of office^ 
and pay them decently. 

Q. Suppose a contract is given a man in Shasta County, how can a man be sent 
away from here and in the face of the incompetent pay hope to make anything? — A. 
He can't under ordinary business rules. There is no money in it if he has been sent 
on such work as I have been sent. I do not know how they do it. There are cases 
where men are appointed in Shasta County. He sends his bond down here as re- 
quired and makes his survey. I do not understand how a man can intrust his field- 
notes to another to rewrite. If he sends these notes down here and they come into the 
surveyor-general's possession and these notes are found incorrect they are not re- 
turned to this man, but they are simply returned to Mr. Benson for correction, and he 
changes and corrects them. Bat still Mr. Wagner is 50 per cent, better than we 
have ever yet had the office. 

This manufactory of field-notes has existed for a long time ; I do not know just how 
long; I think about five years. Before that was established they made up their own 
field-notes ; or possibly he was successor to some other person. Before Mr. Benson 
became the chief man it was necessary to be ou the right side of Mr. Dyer. 

If the surveyor-general should be ordered to have so many men as their assistants at 
such and such a salary, these men to be strictly examined and not to be men who 
acted as chain-carriers for six months and then come and call themselves engineers; 
if it was necessary that every deputy surveyor should be capable of making a decent 
map of his owu work, and a tolerably well educated man, then you would have better 
work, provided you pay them when the work is done. 

I was out with Mr. Hobbs in the winter among the timber depredations, and the 
pay for that lagged for five or six mouths after it became due. and so it has been right 
straight along. The trouble is that most deputies are in the hands of brokers and pay 
2^ per cent, for their pay. You will find that one-half of the vouchers are accompa- 
nied by a power of attorney. For instance, I have executed my contract, I have paid 
all my expenses, and I return my work, and it is proved there is due me $7,000. I have 
expended all I have, and I know I cannot get a cent for six or eight months ; the con- 
sequence is that I have to go to some broker, give him power of attorney to draw the 
check. He then advances me perhaps $1,000 or $2,000 to pay me my own money, and 
to live myself I have to pay him from 11 to 2$ per cent, per month until that draft 
arrives. When it arrives the broker takes out what belongs to him, with the interest, 
and then passes me the rest. 



PUBLIC LANDS. 673 

There is one principal broker here, a man by the name of Greenbaum. Benson is 
doing a great deal of it himself. 

If people will freely tell you their experience yon can see the facts themselves and 
draw your own conclusions. No matter what system you recommend, the proof of the 
pudding will remain in the eating of it, and it will depend upon how it is carried out. 

When a contract is awarded there is no way of testing his instruments. That is a 
great trouble. The government should certainly in the first place insist upon the best 
instruments known. The deputy surveyors furnish their own instruments, and they 
are not tested at all. There should be a standard instrument at each office. He never 
even brings in his chain to be tested. I do not think they have a standard chain in 
the office. The only way to test the chains is to compare them with a steel tape. 
There is supervision over the instruments that are used. We are instructed to use 
solar instruments. All of the deputy surveyors are provided Nautical Almanacs, but 
when they do not use the solar instruments they do not have the Nautical Almanac. I 
know of a man swearing that he ran a transit line, and it was a west line, but he did 
not look at his needle. I heard that same man testify that a needle line that was run 
several years ago could be run again. The instructions require that we should use a 
solar transit or solar compass. I may be mistaken about that, but such is my impression. 

We have an immense mass of deputies, out of which I would not employ one hun- 
dred and fifty of them. Mr. Van Light cannot be induced to take a contract. Alfred 
Carver cannot be induced to have a contract. I have not taken any contracts for a 
long time. The only contract I have taken was the surveying of a range, and at $15 
per mile I lost $350 on it. 

Q. To whom do the field-notes go, and what proof has that officer of the correct- 
ness of the survey ? — A. Field-notes go first to the chief draughtsman, and he has no 
other proof of their correctness than the mathematical correctness on the face of the 
paper, and the survey, too, is proof. You often find that surveys are correct on paper, 
but in resurveying the whole or parts you find the undoubted proof that something 
has been covered up, and I have known instances where not a single solitary line 
agreed with the field-notes. The examination of the chief clerk passes the survey. 
and for proof he has nothing but the mathematics upon the papers, and upon which 
to give his decision. So if anybody sat down in this city and made the mathematics 
agree this survey would be approved. The only thing that would prove anything is 
not done, and that is a quiet examination of the work in the field. There is a mode 
provided for inspection in the field, and the statutes provide for it, I believe, but you 
cannot appoint an agent unless there is money to carry it into effect. 

Q. How many draughtsmen are employed in the land office here? — A. Out of the 
regular appropriation there are only three draughtsmen employed; the remainder are 
employed out of these special deposits. The regular draughtsmen vary from two to 
five or seven. The average amount of special deposit varies very much. There has 
been a great deal of trouble about the special deposits. It seems that the predecessors 
of Mr. Wagner went it blind, and the special deposits were exhausted before the 
mining claims for which deposits have been made were worked up. 



h 



INDEX TO THE TESTIMONY. 



Allardt, G. F., California. 

Debris from mines, hydraulic mining, 15. 
Archibald, Albert W., Colorado. 

Pasturage homesteads, timber and agricultural land, pasturage lands, surveys, 
classification, 243, 244. 
Arms, H. N., Colorado. 

Pasturage homesteads, pasturage lands, stock-raisiug, 244,245. 
Armstrong, N., Montana. 

Mining, and local mining laws, 340. Artesian wells, 43,82, 84, 106, 120,248. 431, 
459, 493, 515. 
Ashburner, William, California. 

Timber lands, destruction of timber, irrigable lands, irrigation, water rights, 13, 14. 
Pasturage lands, mineral lands, subterranean rights, 14. Hydraulic mining and 
debris, 15. 
Afkinson, H. M., surveyor-general, New Mexico. 

Surveys, rectangular system, monuments, triangulation, classification of lands, 
grazing lands, irrigable lands, timber land, mining law, districts, apex of a 
lode, Mexican titles, water rights, agriculture, stock-raising, timber lands, dep- 
redations, forest tires, homestead and pre-emption laws, Spanish and Mexican 
grants, 441-444. 
Babbitt, A. T., Wyoming, 554. 
Bacon Daniel, Idaho. 

Answers to printed interrogatories, agriculture, timber, and lode claims. 327-329. 
Bailey, T. C, Utah. 

Classification and survey of the public lands, pre-emptions, repayments, pre-emp- 
tion proofs, homesteads, cancellation, contests, witnesses, cost and expenses, 
publication, soldiers' homesteads, timber culture, desert lands, timber lands, 
mineral lands, 475-482. 
Baldwin, Charles C, Colorado. 

Mineral surveys and claims, rectangular surveys, 245. 
Ball, John A , Oakland, Cal. 

Lands under water, timber, desert, pasturage, irrigable lands, agriculture in Cal- 
ifornia, rainfall, homesteads, water rights, 18-21. 
Ball, Willis, Nebraska. 

Answers to printed interrogatories, 384, 385. 
Ballard, D. P., Washington Territory. 

Agriculture, timber, and lode claims, 637, 633. 
Bane, M. M., Utah. 

Timber lands, square location and mineral surveys, 483. 
Banus, V. V., Dakota. 

Answers to printed interrogatories, 579. 
Beattie, R. C, Colorado. 

Sheep ranges and fencing of, homestead law, pasturage homestead in New Mexico, 
245, 246. 
Beatty, W. H., chief justice of Nevada. 

Mining laws and lode claims ; local rules and records, 395-403. 
Belford, James B., Colorado. 

Irrigation, pasturage lands, leasing of the public lands, pre-emption and homestead 
system, artesian wells, 247,243. 
Belknap, J. W., Oregon. 

Agriculture and timber, 623, 624. 
Bell, Aaron, California. 

Agricultural lands in Northern California; rainfall; homestead and preemption 
laws, additional homesteads, cancellation, abandonment of homesteads; min- 
eral and non-mineral lands, hydraulic mining, mineral contests, mining rec- 
ords, 22-26. 
Bell, V. G., California. 

Debris from mines, 33. Destruction of timber, 34. 
Berry, James T., Washington Territory. 

Agriculture, timber and placer claims, 638, 639. 



676 INDEX. 

Beshoar, Dr. M., Colorado. 

Agriculture, irrigatiou, trouble between sheep and cattle men, stock raising and 
farming, 248, 249. 
Bielawski, C, California. 

Surveys, contract system, inspector of surveys, cost of surveys, townships surveyed ; 
permanent monuments ; Spanish and Mexican grants, 570, 571. 
Bielawski, C, San Francisco. 

Rectangular system of surveys, 26. Triangnlation, 26. Surveys of Mexican land 
grants, 27. Contract prices of surveys, 27. 
Bliss, D. L., Nevada. 

Timber land and land scrip, 605, 606. 
Boggs, John, California. 

Irrigable, timber, and pasturage lands; water rights, grazing lands, mineral res- 
ervations, classification, irrigation, 28, 29. 
Bonnelle, E. B., Montana. 

Surveys, monuments, and inspection, 597,598. 
Boutelle, George O. M., Utah. 

Changes suggested in the survey of the nublic lands, 483-487. 
Bowers, W. H. H., Utah. 

Mining claims- surveys, location, and records, 519.520. 
Boyle, James G., Dakota. 

Filings in the local land office, occupation of land continuously by settlers, 579. 
Answers to printed interrogatories, agriculture and timber, 317, 318. 
Bradley, H. S., California. 

Timber, agricultural and mineral land ; debris from hydraulic mining, 30-32. 
Bradley, James F., Utah. 

Mining laws, amendments suggested ; water rights, laws and decisions collated, 517. 
Bright, E. D., Colorado. 

Agriculture, timber, lode and placer claims, 576, 577. 
Brown, J. T., Washington Territory, 542. 
Bruce, Minor W., Nebraska. 

Answers to printed interrogatories, agriculture and timber, 385. 386. 
Bruner, Uriah, Nebraska. 

Answers to printed interrogatories, agriculture and timber, 386, 337. 
Bruner, Uriah, Nebraska. 

Answers to printed interrogatories, 599, 600. 
Brush, J. L., Colorado. 

Cattle raising on pasture lands ; pasturage, homesteads, 248-251. 
Buck, Royal, Nebraska. 

Answers to printed interrogatories, agriculture and timber, 387-389. 
Burchinell, William K., Colorado. 

Agricultural and timber lands, destruction and preservation of timber, pasturage 
lands, private entry, surveys, mineral lands, square location, apex of a lode, lit- 
igation, local records, 251-256. 
Burgess, M. T., Utah. 

Mining, lode claims, apex of a lode, mineral law litigation, mining districts, min- 
ing recorder, locations, records, square locations, tunnel locations, and mill- 
sites, 487-491. 
Bujnham, L. S., Utah. 

Agriculture, cancellation, litigation, artesian wells, alkali beds, pasturage home- 
steads, Mormon land titles, 492, 493. Lode claims, 632. 
Bush, A. K., Washington Territory. 

Agriculture, timber, coal deposits, timber lauds, and depredations, 639, 640. 
Byers, William N., Colorado. 

Answers to printed interrogatories, 256. Agriculture, timber, lode and placer 
claims, 258, 259. 
Caplice, John, Montana. 

Mining claims and mineral surveys, 342, 343. 
Carpenter, Harvey, receiver, and James McMartin, register, land office, Eureka, Nev. 
Fees and salaries, mineral-district recorders, homestead applications, rectangular 
system of surveys, triangnlation, agricultural and pasturage lands, pasturage 
homestead, water rights, contentions between sheep and cattle men, timber and 
control of timber lands, timber depredations, rainfall, desert land act. irrigation, 
pre-emption and homestead law, 424-42(t. 
Carroll, Patrick, California. 

Debris from mines, 34-36. 
Case, Francis M., Colorado. 

Surveys of public land and irrigation, 259, 260. 
Catlin, Robert M., Nevada- 
Answers to printed interrogatories, agriculture, timber, and lode claims, 411-413. 



INDEX. 677 

Chamberlain, Charles H., receiver of public moneys, San Francisco, Cal. 

Irrigation, pasturage land, private entry, homestead, desert, and pre-emption acts, 

agricultural, timber, and unsurveyed land; cancellation, contest, records, 39. 
Timber land, declaratory statements, 40,41. 
Chandler, S. R., California. 

Mining debris ; lands saved from destruction by levees; tule or swamp land, 41. 
Chapin, George, Idaho. 

Answers to printed interrogatories, agriculture and timber, 329,330. 
Chase, Edward R., Nevada. 

Answers to printed interrogatories, agriculture, timber, lode claims, 404-408. 
Agricultural lands of Nevada, homestead application, local land officers, railroad 
lands, pre-emption, homestead, 608-610. 
Chase, James A., Idaho. 

Answers to printed interrogatories, agriculture and timber, 330, 331. 
Lode claims, placer claims, and coal lands, 332, 333. 
Chessman, W. A., Montana. 

Water rights, irrigation, placer claims, square locations, 343, 344. 
Christian, John Ward, Utah. 

Answers to printed interrogatories, 494, 495. 
Clark, E. S., survey or- general, Nevada. 

Present system of rectangular surveys, monuments and stakes, deputy surveyors, 
mineral surveys, timber-land survey and sale of ; protection of timber, homestead 
and pre-emption filings, mining cfaiins and local mining districts ; agriculture 
and irrigation, grasses, land-office expenses, salaries, and fees, 426, 427. 
Clark, Galen, Yosemite Valley, California. 

Answers to printed interrogatories, agriculture, timber, and timber depredations, 
42-44. 
Clark, J. T., California. 

Irrigation and water rights ; pasturage and grazing lands ; Spanish land-grants 
pre-emption, timber, artesian wells, 44-48. 
Cobban, William S., Dakota. 

Agriculture and timber, 580. 
Coffin, S., register, and Caleb N. Thornburg, receiver, Oregon. 

Relative to agriculture, timber, lode and placer claims, 624. 
Combs, Edwin H., Montana- 
Answers to printed interrogatories, agriculture, timber and placer claims, 598, 599. 
Cooney, J. C, New Mexico. 

Lode claims, 619, 620. 
Courtis, William M., Michigan. 

Answers to printed interrogatories, 338, 339. 
Lode claims, 339, 340. 
Crisweli, R. H., Nebraska. 

Answers to printed interrogatories, 600. 
Cross, Charles W., California. 

Lode and placer claims, 571, 572. 
Cuppett, William M., Dakota. 

Answ er to jjrinted interrogatories ; agriculture and timber, 319, 320. 
Curr, John, Colorado. 

Sale of non-mineral lands ; pasturage land ; fencing of pasturage land ; timber- 
culture, 578. 
Currey, George B., Oregon. 

Agricultural, pasturage, and timber lands; mining laws, 625, 626. 
Davenport, William, Montana. 

Pasturage lauds : conflicts between cattle and sheep men ; pasturage homesteads, 
agriculture, stock-raising, rainfall, 344. 
Davidson, Daniel, Utah. 

Pastoral lands, conflicts, sale of pasturage lands, pasturage homestead, stock- 
raising, 495,496. 
Davis, A. J., Montana. 

The mineral, pasturage and agricultural iuterests of the Territory ; irrigation, de- 
struction of timber, rainfall, pasturage homestead, mining records ; deputy min- 
eral surveyors, square location, water rights, mineral contests, 345-347. 
Davis, C. D., H. S. Patterson, California. 

Agriculture and timber ; mining and pasturage lands, 572-574. 
Davis, John C, register land office, New Mexico. 

Relative to Spanish and Mexican grants, desert land act, classification and sale of 
public lands, disposition and sale of irrigable lauds, sale of timber and pasturage 
lands, pre-emption and homestead, abandonment of homesteads, cancellation, 
irrigation, pasturage homestead, timber land, mineral lands, mining districts, 
water rights, 445-447. 



678 INDEX. 

Day, S. H. and others, Nevada. 

Survey of timber lands, cutting of timber, irrigation, pasturage homesteads, rain- 
fall, agriculture without irrigation, lien lands and mining school, 607, 608. 
Decker, Peter, California. 

Amounts expended in consequence of the rilling of rivers by tailings from mines, 
574. 
Deegan, Ralston, Montana. 

Pasturage lands, water rights, grasses on pasturage land : pasturage homestead, 347. 
Dickson, S. R., Utah. 

Manner of making and recording mining claims assessments, 519. 
Downey, Stephen W., Wyoming. 

Agriculture, timber, lode and placer claims, 548-553. 
Downey, Stephen W., Wyoming. 

Letter to Secretary of the Navy relative to cutting of timber upon the public 
lands, 554-560. 
Drum, W. H., California. 

Filling up of Yuba River bed, land damaged, sedimentarv deposit as a fertilizer, 
52, 53. 
Dugal, Louis, register, and S. T. Thompson, receiver, land office, Denver, Colo. 

Relinquishment of homesteads, &c; cancellation, pre-emption regulations, arid 
and pasturage lands, unoccupied or reserved surveyed lands, sale of public lands 
at private entry, homestead and timber culture, settlers, square locations, irri- 
gation and timber-lands, 260-262. 
Dustiu, Hiram, Washington Territory. 

Agriculture, timber and lode claims, fi 40, 641. 
Edwards, C, Montana. 

Answers to printed interrogatories, agriculture and timber, 348, 349. 
Eisenmann, F. J., Dakota. 

Answers to priuted interrogatories, agriculture and timber, 320. 
Eldridge, Edward, Washington Territory. 

Answers to printed interrogatories, agriculture, timber, lode and placer claims, 
522-527. 
Emory, Wesley P., Montana. 

Answers to printed interrogatories, agriculture, timber, lode and placer claims, 
350-353. 
Evans, El wood, Washington Territory. 

Answers to printed interrogatories, agriculture and timber, 527-532. 
Fahringer, A. M., Colorado. 

Pasturage lands, private entry, pasturage, homesteads, 262-263. 
Fenner, Lawrence A., Montana. 

Amendments to the mining laws suggested, 355. 
Ferguson, E. C, Washington Territory. 

Answers to printed interrogatories, agriculture and timber, 532-534. 
Ferris, George, Wyoming, 561. 
Filcher, Thomas J., California. 

Lands destroyed by water, 53, 54. 
Fitch, M. H., receiver, land office^ Pueblo, Colorado. 

Cancellation and abandonment of homesteads, rectangular system of surveys, non- 
mineral lands, irrigation, pastuiage land ; timber-culture act, protection and de- 
struction of timber ; Mexican land grant, pre-emption and homestead ; Fort Rey- 
nolds reservation ; mining records ; coal lands, 263, 264. 
Flannery, William, Montana. 

Answers to printed interrogatories, agriculture and timber, 355-358. 
Flick, Jerry D., Dakota. 

Agriculture and timber, 580, 581. 
Flowerree, Daniel, Montana. 

Pasturage land, pasturage homestead, sheep and cattle interest, grasses, 360, 361. 
Foote, E. S., Utah. 

Pasturage lands, stock raising, agriculture, irrigation, grasses, railroad lands, con- 
flicts between sheep and cattle men, water rights, 499, 500. 
Foote, George B., Montana. 

Mining : apex of a lode ; litigation ; mining districts ; expense of mineral titles, rec- 
tangular system of surveys and monuments, timber land, pasturage homestead, 
irrigation ; water rights, desert-land act and placer-claim law, 358-360. 
Ford, Capt. T. C, Nevada. 

Agriculture, pasturage land : cattle and sheep; survey and sale of timber lands, 427. 
Foster, Albert, California. 

Debris from mines, soundings on Feather River, depth of water, canal to reclaim 
lands ovei flowed, tilling up of rivers, 151-155. 



INDEX. 679 

Foster, Charles M., Oregon. 

Answers to printed interrogatories, agriculture, timber, lode and placer claims, 
468-472. 
Fraser, Daniel, California. 

Bottom and red lands, tailings from mines, farming land destroyed, 54, 55. 
Gales, N, New Mexico. 

Answers to printed interrogatories, agriculture, timber, lode and placer claims, 
447-448. 
Gantz, August E., California. 

Surveys; rectangular system ; surveyors- general, deputies, contract system, instru- 
ments used, field notes and draughtsmen in land office, 669-673. 
Gardner, Robert, California. 

Pasturage lands, land scrip, mineral lands, surveying, mining and mining laws, 
timber lands, irrigation, desert lands of California, 56-60. 
Gast. Charles E., Colorado. 

Railroad grants, right of way, 264, 265. 
Gibson, James, Montana. 

Answers to printed interrogatories, agriculture and timber, 361-363. 
Gillette, W. C, Montana. 

Pasturage lands, pasturage homestead, agricultural and irrigable lands, sheep, 
timber, coal mines, irrigation, 363. 
Gilson, Samuel, Utah. 

Pasturage lands, irrigation, homestead law, 500-502. 
Goodwin, Louis, Colorado. 

Square location and mineral laws, 265. 
Goulter, John R., Washington Territory. 

Answers to printed interrogatories, agriculture and timber, 534, 535. 
Gray, George, New York, N. Y. 

Public lands and present system of surveying, 622, 623. 
Gwynn, Hon. William M., San Francisco, Cal. 

Timber lands, depredations, irrigable lands, pasturage lands, pre-emption and 
homestead laws, sale of pasturage lands, water rights, 60, 61. 
Haas, John George, California. 

Agriculture and timber, 578, 579. 
Haggin, J. B., San Francisco, Cal. 

Information and statistics given by Messrs. Haggin & Carr relative to irrigating 
the farms owned by them in Kern County, California, 654-669. 
Hall, N. J., New Mexico. 

Agriculture and timber, 620, 621. 
Hall, William E., Utah. 

Agriculture, timber and lode claims, 632, 633. 
Hall, William M., Colorado. 

Pasturage land ; fencing, agriculture, pasturage homesteads, pre-emption, and 
homestead, 266. 
Hallett, Hon. Moses, Colorado. 

Mineral lands, 269-271. 
Haraszthy, Arpad, San Francisco, California. 

Vine culture, grapes, rainfall, wines, disposition of the public lands, irrigation, and 
water rights, 61-64. 
Hardy, E. C, Nevada. 

Answers to printed interrogatories ; agriculture, timber and lode claims, 610-615. 
Harriman, A. T. 

Surveying, deputies, national system of irrigation, 64. 
Harris, C. J. B., Dakota. 

Agriculture and timber. 581, 582. 
Harris, C. N, and others, Nevada. 

Relative to the best system of disposing of the public domain, and recommending 
some changes in legislation, 615-618. 
Harrison, Edwin, Colorado. 

Mineral surveys and claims : apex of a lode, titles, local records and laws, litiga- 
tion, tunnel location, 267, 268. 
Harrison. R. D., Montana. 

Mining ; location of railroad and government sections of land ; water rights,, 
square location, general mining law, timber lands, production of the mines, 
placer mines ; estimate production for the next year, 363-366. 
Hastings, E. O. F., California. 

Timber, preservation and disposition of; homestead and pre-emption laws, pas- 
turage land, private entry, pasturage homestead, water rights, irrigation, sub- 
terranean rights, mineral and agricultural lands, mineral reservation, and hy- 
draulic mining, 78-81. 



€80 INDEX. 

Hatch, Joseph, Utah. 

Timber and timber laws, 633. 
Hauser, S. F., Montana. 

Pasturage lands and homestead, rainfall, 366. 
Hawley, Lyman L., Oregon. 

Answers to printed interrogatories ; agriculture, timber and lode claims, 626, 627. 
Haydon, William, Dakota. 

Relative to lode claims, 321, 322. 
Haywood, W. T., California. 

Inigation, pasturage, homestead and water rights, timber lands, forest fires, and 
protection of timber, 65-68. 
Healy, Patrick J., California. 

Pasturage, homestead, irrigation, and disposition of the public lands, 68, 69. 
Hendren, Cornelius Downing, Colorado. 

Answer to printed interrogatories ; agricultural and timber lands, 271-274. 
Henry, John J., register land office, Leadville, Colorado. 

Agricultural and mineral land, cancellation, abandoned homesteads, pre-emption 
and homestead notices, water rights, timber lands, forest fires, destruction of 
timber, private entry, timber culture, scrip, South Park, coal land, pastoral laud, 
unsurveyed lands, mineral laws and records, homestead or pre-emption proof, 
adverse claims, and litigation, 274-279. 
Herrmann, A. T., California. 

Surveys ; rectangular system, topographical survey, 69-74. 
Hershfield, L. H., Montana. 

Pasturage, agricultural, and desert land, pasturage homestead, timber land, pla- 
cer claims, irrigable lands, desert-land act, 366, 367. 
Hill, Harry C, San Francisco, California. 

Mining laws and lode claims, 74-76. 
Hill, Mason M., Utah. 

Lode claims, 633-635. 
Hill, S. W., Colorado. 

Mineral laws, mining, and surveys, 279-284. 
Holden, William, California. 

Answers to printed interrogatories ; agriculture and timber, 77, 78. 
Holes, James, Dakota. 

Agriculture and timber, 582, 583. 
Holt, William S., Colorado. 

Homestead and pre-emption acts, pasturage land, and fencing of, 284-236. 
Holter, Anthon M., Montana. 

Destruction and preservation of timber, timber culture, rainfall, irrigation and ag- 
riculture, irrigable lands, pasturage lands, irrigation, water rights, mining, square 
locations, apex of a lode, local rules, 367-369. 
Homesteads.— T. C. Bailey, 479,480; John C. Davis, 445; Louis Dugal and S. T. 

Thompson, 261 ; J. C. Jones, 286 ; R. F. Knox, 98 ; William J. Lewis, 100 ; H. N. 

Maguire, 584 ; Orville B. O'Bannon, 342 ; J. H. Redstone, 180 ; L. L. Robinson, 

185 : I. S. Singiser. 334 ; W. H. Smallwood and S. W. Brown, 535 ; Edward F. Tav- 

lor, 217 ; J. W. Tripp, 218 ; A. W. Von Schmidt, 240 ; E. D. Wright, 312. 
Homesteads, abandonment of, 23, 38, 83, 159, 260, 263, 275, 326, 374, 445. 
Homesteads, additional, 23, 37, 375, 480. 

Homesteads, cancellation of, 23, 39, 78, 83, 159, 260, 263, 445, 479, 507. 
Homesteads, contests, 39, 85, 78, 140, 479, 609. 
Homestead, pasturage. (See pasturage homestead.) 
Hopkins, R. C, Arizona. 

Spanish laws of 1761 and 1789, relative to irrigation in the western provinces 
of Mexico, 569, 570. 
Howard, Governor William A , Granville Beuuett, and others, Dakota. 

The public lands, present system of rectangular surveys, monuments, triaugn- 
lation, surveyors general, mineral surveys, agricultural land, the Black Hills, 
mineral laws, 409, 411. 
Howe, J. M., register land office, Lewiston, Idaho. 

Answers to printed interrogatories, 595. 

Agriculture ; timber, lode, and placer claims, 596, 597 
Hull, Joel, Nebraska. 

Answers to printed interrogatories ; agriculture and timber, 600, 003. 
Hyde, J. D., register land office, Visalia, California. 

Present system of rectangular surveys, pasturage homesteads, timber lauds, con- 
tested cases, rent and fuel for district land offices, 78. 
Irrkjaulk Lands.— 13, 443, 18, 28, 445, 51, 264, 363, 60, 367. 369, 413, 100, 104, 119, 127, 131, 
136, 139, 378, 17 1 , 184, 205, 338, 218, 239. 



INDEX. 681 

Irrigation.— William Ashburner, 13; H. M. Atkinson, 443; John A. Ball, 20; lion. 
James B. Belford, 247 ; Aaron Bell, 22 ; Dr. M. Beshoar, 249 ; John Boggs, 28 ; 
Harvey Carpenter and James McMartin, 426; Francis M. Case, 260 ; Charles H. 
Chamberlain, 36 ; W. A. Chessman, 343 ; E. S. Clark, 426 ; J. T. Clark, 45 ; J. W. 
Clarke, 48 ; A. J. Davis, 345 : John C. Davis, 446; S. H. Dav, 607 ; Louis Dugal 
and S. T. Thompson, 262; M. H. Fitch, 263 : E. S. Foote, 500 ; George B. Foote, 
360 ; Robert Gardner, 58 ; W. C. Gillette, 363 ; Samuel Gilson, 501 ; Hon. William 
M. Gwynn, 60 ; J. B. Haggin, 654 ; A. T. Harriman, 65 ; Arpad Haraszthy, 64 ; 
E. O. T. Hastings, 80 ; W. T. Haywood, 65 ; Patrick J. Healy, 68 ; Anthon M. 
Holter, 369 ; R. C. Hopkins, 569 ; J. D. Hyde, 78 ; Alfred James and W. H. Nor- 
way, 84 ; H. L. Knight, 96 ; B. F. Leete, 413 ; Jerome Madden, 105 ; H. N. Mc- 
Guire, 589 ; John Markley, 116 ; William R. May, 506 : John McClay, 118 ; John 
McDonald, 120 ; H. A. Messinger, 127 ; John B. Milner, 498 ; Judge J. W. North, 
131 ; George A. Nourse, 139 ; Orville B. O'Bannon, 342 ; William H. Parks, 157 ; 
Dana Perkins, 161 ; Benjamin Franklin Potts, 377; J. A. Robinson, 183 ; L. L. 
Robinson, 184 ; Thomas J. Read, 414 ; B. B. Redding, 162-170 ; Trinidad Romero, 
460; James W. Shanklin, 205; Colonel George L. Shoup, 338 ; Granville Stuart,. 
382; James B. Thompson, 309 ; Alexander Topence, 515; J. W. Tripp, 218 ; A. 
W. Von Schmidt, 240 ; B. F. White, 429. 
Ivinson, Edward, Wyoming. 

Timber lands, origin of forest tires, timber depredations, 562. 
Timber laws, 561-563. 
James, Alfred, register, and W. H. Norway, deputy surveyor, Los Angeles district, 
California. 
Public lands ; conflicts between cattle and sheep men ; sale of pasturage lands ; 
homestead and pre-emption laws, abandonment, cancellation, timber culture and 
desert land acts, reclamation, artesian Avells, timber lands, taking testimony, 
records, surveys, classification, private land claims, 81-87. 
James, I. E., Nevada. 

Mining laws, timber lands, cutting of timber, mining law — tunnel act — Comstock 
lode, locations, 427-428. 
Jay, Evan T., Nebraska. 

Answers to printed interrogatories, 603-605. 
Johnson, William Neeley, California. 

Timber lands and sale of, agriculture, rainfall, placer lands, hydraulic mining, 
88-90. 
Jones, George W., California. 

Mines and mining ; lode claims, 90-92. 
Jones, J. C, Colorado. 

Pasturage land, pasturage homesteads, agricultural lands, cattle raising, 286. 
Justice, Charles, California. 

Bear and Yuba Rivers, levees, debris from mines, 92-94. 
Kanouse, James E., Montana. 

AusAvers to printed interrogatories ; agriculture and timber, 370-372. 
Kent, Lewis H., Nebraska. 

Answers to printed interrogatories ; agriculture and timber, 389, 390. 
Kenyon, R. A., Nebraska. 

Answers to printed interrogatories ; agriculture and timber lands, 390. 
Keyes, J. H., California. 

Debris from mines, 94, 95. 
Klotz, Rudolph, California. 

Agricultural and timber lands, 575. 
Knight, H. L., California. 

Timber lands and sale of ; grazing lands and destruction of timber, 95-97. 
Knox, R. F., California. 

Lands in Napa County, surveying, mineral claims, timber and irrigable land ; pas- 
turage lands, prospecting, quicksilver mining; land survey, 97-100. 
Krouig, William, New Mexico. 

Answers to printed interrogatories ; agriculture and timber, 448-450. 
Lamb, A. J., Colorado. 

Answers to printed interrogatories ; agriculture and timber, 287, 288. 
Land grants— H. M. Atkinson 444; C. Bielawski, 570; L. S. Burnham, 493; J. T. 
Clark, 46; John C. Davis, 444; M. H. Fitch. 264; R. C. Hopkins, 569: John 
Markley, 115; Judge J. W. North, 136; B. B. Redding, 174 and 177; J. H. Red- 
stone, 181 ; J. A. Robinson, 183; L. L. Robinson, 185; Trinidad Romero, 460 ; 
John Wasson, 4. 
Leete, B. F., Nevada. 

Irrigation, irrigation canals, irrigable land, 413. 
Resolution petitioning Congress. 

U L C 



682 INDEX. 

Lewis, William J., California. 

Timber, irrigable and pasturage lands, water rights, surveys, debris from mines, 
100-102. 
Lode claims— Daniel Bacon, 329; T. C. Bailey, 481 ; W. H. Beatty, 395 ; E.D. Bright, 
577; M. T. Burgess, 487; L. S. Burnham, 632; W. N. Byers, 258; E. D. Catlin, 
412; E. E. Chase, 407; J. H. Cbase, 332; J. C. Cooney,619; W. M. Courtis, 339; 
C. W. Cross, 571 ; S. W. Downing, 552; E. Eldridge, 525; W. P* Emory, 351 ; L. 
A. Fenner, 354; G. B. Foote, 358; C. M. Foster, 470; Eobert Gardiner, 57; Will- 
iam E. Hall, 633; Moses Hallett, 269; E. C. Hardy, 615; Edwin Harrison, 267; 
E. D. Harrison, 363 ; William Haydon, 321 ; Harry C. Hill, 280 ; M. M. Hill, 633 ; 
S. W. Hill, 279 ; J. M. Howe and E. J. Monroe, 597 ; I. E. James, 423 ; George W. 
Jones, 90: J. B. Low, 289; William Magee, 112; H. N. MaGuire, 588; J. H.Mar- 
tineau, 505 ; W. McDermott, 372 ; O. H. McKee, 123 ; W. McMullen, 451 ; George 
G. Merrick, 298; Henry Neikirk, 300; George A. Nourse, 143; G. H. Pradt, 456; 
E. W. Eaymond, 643; H. N. Eeed, 303 ; A. D. Eock, 416 ; Chas. M. Eolker, 461 ; 
W. H. Stevens, 306 ; Edward F. Taylor, 215 ; D. Van Lennep, 418 ; Thomas 
Waser, 229; John Wasson, 3 ; Stephen C. Wheeler, 233; B.C.Whitman, 419; 
E. B. Wilder, 521 ; L. J. Wrinkle, 431 ; Carl Wulstein, 316. 
Low, J. B., Colorado. 

Mining litigation, apex of a lode, 289,290. 

Localmineral laws, square locations, placer claims, lode claims, tunnel location — 291. 
Madden, Jerome, Southern Pacific Eailroad Company, Sacramento, Cal. 

Classification ; disposition of timber lands and preservation of irrigable lands ; 
irrigation ; water rights ; desert-land act ; pasturage land within railroad grants ; 
land grants in California; survey of Spanish grants, and mining law, 102-109. 
Magee, William, California. 

Mineral surveys and monuments; recording mineral claims; answers to printed 
interrogatories, 110-115. 
MaGuire, H. N., Dakota. 

Defects in the working's of the public land laws; homesteads and pre-emptions; 
desert-land act, timber-culture act, and mineral land laws ; coal, pasturage, and 
timber lands; surveys; mining records; litigation; irrigation, agriculture, and 
land grants, 583-589. 
Markley, John, California. 

Spanish grants ; restoration of lands held under the railroad reservations; rain- 
fall; timber, coal, &c, 115, 116. 
Martineau, James H., Utah. 

Answers to printed interrogatories ; agriculture, timber, lode and placer claims, 
502-505. 
Mason, Eowell H., surveyor general of the Territory of Montana. 

Surveys; classification of lands; timber land; subterranean rights; mineral lands ; 
forest fires ; pasturage land ; pasturage homestead ; inspection of surveys ; com- 
pensation ; local mining laws ; mineral surveys and records, 380, 381. 
Mason, H. P., Utah. 

Timber lands ; destruction and protection of timber, 506. 
May, William E., Utah. 

Irrigation, water rights, 506, 507. 
McBloome, W. H., New Mexico. 

Surveys, 444. 
McBride, John S., California. 

Mineral lands ; local laws; debris from mines; miniug, 116, 117. 
McCaskill, John, and others, Colorado. 

Pasturage land ; agriculture ; stock ; fencing ; pasturage homestead ; water rights, 
291-293. 
McClay, John, California. 

Timber, destruction and preservation of; debris from mines, irrigation, mineral res- 
ervation, placer claims, 117, 118. 
McCoy, Charles T., Dakota. 

Agriculture and timber, 590, 591. 
McDermott, Walter, Montana, 

Answers to printed interrogatories, lode claims, 372, 373. 
McDonald, John, California. 

Timber lands, sale of, protection of ; miueral lands, irrigation, disposal of irrigable 
and pasturage lands ; lode claims, square location, hydraulic mining, surveys, sub- 
terranean rights, 118-122. 
McGillivray, James, California. 

Lands injured from hydraulic miniug; timber lands and disposition of ; tailings from 
mines, flood of 1862, reservoirs, water rights, 122, 123. 
McKee, O. H., California. 

Mineral laws, present; square location, placer claims, contests, 123, 124. 



INDEX. 683 

McMnllen, William, New Mexico. 

Answers to printed interrogatories, agriculture, private land grants, lode and 
placer claims, surveys, 450-453. 
McMurray, R., California. 

Timber, preservation of, mineral lands, placer claims, debris from mines, 1:24-1*26. 
Meeker, N. C, Colorado. 

Homestead and pre-emption laws, water rights and ditches, preservation and de- 
struction of timber, pasturage lands, 293, 294. 
Merrick, George G., Colorado. 

United States laws, lode claims, apex of a lode, mineral land, mineral surveys, 
placer claims, 298-300. 
Messinger, H. A., California. 

Timber, preservation of, irrigation, disposition of irrigable and pasturage lands, 
placer mining, non- mineral land, timber lands, 125-128. 
Metcalf, Henry H., Colorado. 

Pasturage lands, grasses, homestead and pre-emption, cattle-raising, climatic 
changes, private entry, water rights, 294-297. 
Miller, N. C, California. 

Timber lands, mineral lands, agricultural lands, red land, debris from mines, 
128, 129. 
Mills, Suydenham, Colorado. 

Placer claims, lode claims, 297, 298. 
Milner, John B., Utah. 

Surveys, monuments, rectangular system, timber lands and cutting of timber, 
water rights, irrigation, 496-499. 
Mines, debris from. G. F. Allardt, 15 ; William Ashburner, 15 ; V. G. Bell, 33 ; H. S. 
Bradley, 32 : Patrick Carroll, 34 ; Peter Decker, 574 ; W. H. Drum, 53 ; Captain 
Albert Foster, 153 ; Daniel Fraser, 55 ; Charles Justice, 93 ; J. H. Keyes, 94 ; 
William J. Lewis, 102 ; John S. McBride, 117; John McClav, 117 ; John McDon- 
ald, 121; James McGillivray, 122 ; R. McMurrav, 125; N. C. Miller, 128; James 
O'Brien, 146 ; George Ohleyer, 147 ; D. A. Ostrom, and others, 149 ; B. B. Red- 
ding, 174 ; L. L. Robinson, 185 ; Thomas Sampson, 212 ; B. B. Spillman, 211 ; O. 
B. S'tiger, 209 ; J. W. Tripp, 219 ; A. W. Von Schmidt, 241. 
Mining, hvdraulic— G. F. Allardt, 15 ; William Ashburner, 15 ; Aaron Bell, 23 ; V. G. 
Belli 33; H. S. Bradley, 32 ; Sherman Day, 51 ; Thomas J. Filcher, 54 ; E. O. F. 
Hastings, 81; William Neeley Johnson, 90 ; J. H. Keyes, 94 ; John McDonald, 
121; James McGillivray, 122 ; George Ohleyer, 147 ; D. A. Ostrom, and others, 
150 : B. B. Redding. 174 ; L. L. Robinson, 185 ; Thomas Sampson, 212 : A. A. Sar- 
gent, 198 ; O. B. Stiger, 209, J. W. Tripp, 219; A. W. Von Schmidt, 241. 
Mining recorders — M. T. Burgess, 488; Harvey Carpenter and Jas. McMartin, 424; 
M. H. Fitch, 262; J. D. Hvde,78: Alfred James and W. H. Norway, 85: William 
Magee,lll; Rowell H. Mason, 381; J. H. Moe,373; A. A. Sargent, 202 ; B.C. 
Whitman, 419. 
Mining records— 24, 85, 86, 111, 143, 202, 268, 341, 345, 381, 416, 419, 488, 517, 520, 588. 
Mineral survevs— Charles C. Baldwin, 245 : General M. M. Bane, 483 ; W. H. H. Bow- 
ers, 519; John Caplice,343; E. S. Clark, 426; A. J. Davis, 346; Edwin Harrison, 
267 ; Governor William A. Howard and others, 411 ; J. B. Low, 289; Rowell H. 
Ma8on,381; George G. Merrick, 300 ; William Magee, 110 ; George A. Nourse, 
143; Col. Geo. L. Shoup,338; Eugene K. Steinsou, 308. 
Mineral surveyors— 182, 308, 346. 
Mingus, Robert, Tuscosa, Texas. 

Answers to printed interrogatories, agriculture, 473-475. 
Mizener, D. A., Dakota. 

Answers to printed interrogatories, agriculture and timber, 322, 323. 
Moe, J. H., register land office, Helena, Mont. 

Cancellations, mineral recorders, timber land, depredations, agricultural land, re- 
linquishment of homesteads, homestead filings, pasturage homesteads, surveys, 
desert-land act, homestead' and pre-emption act, registers and receivers, lode 
and placer claims, mining law, additional homestead, timber-culture act, square 
location, 373—375. 
Morrow, J. L., Oregon. 

Answers to printed interrogatories, agriculture, timber and lode claims, 472, 473. 
Morton, J. H., Utah. . 

Mineral locations, records, relocation of claims, 517. 
Munger. D. D., Oregon. 

Answers to printed interrogatories, agriculture, and timber, 627, 630. 
Murphy, John T., Montana. 

Answers to printed interrogatories, agriculture, timber, lode claims, 375-377. 
Murphy, John T., Montana. 

Pasturage lands and homestead, annoyance from Indians, 377. 



684 INDEX. 

Nagle, E., Wyoming. 

Agriculture, 563, 564. 
Neikirk, Henry, Colorado. 

Mines and Mining, 300, 301. 
Neil, J. B., register, land office, Salt Lake, Utah. 

Homestead and pre-emption entries, cancellation, mineral titles, water rights, 
agricultural lands, surveys, classification, registers and receivers, timber lands, 
protection of timber, timber culture, square location ; General Land Office decis- 
ions, 507, 508. 
Newby, W. S., Oregon. 

Agriculture, timber, origin of forest fires, 630-632. 
North, John W., attorney-at-law, San Francisco, Cal. 

Answers to printed interrogatories, irrigation, timber, destruction of timber in the 
Sierra Nevada, water rights, homesteads ; irrigable, timber, and pasturage lands, 
private entry ; Spanish and Mexican claimants in Arizona, 131-137. 
Norway, W. H., California. 

Pacific railroad land grants ; pastoral lands, 137, 138. 
Nounan, James H., Utah. 

Square location, timber lands, protection of timber, pasturage land, 506,509. 
Nourse, George A., California. 

Timber lands, timber depredations, irrigable and pasturage lands ; mineral lands, 
surveys, subterranean rights, pre-emption and homestead; taking testimony, 
mineral laws, local district laws, square location, tunnel location, 138-146. 
O'Bannon, Orville B., Montana. 

Public lands, timber land, protection of timber, classification and sale of lands, 
mining claims, records, mineral lands, non-mineral lands, rectangular surveys, 
irrigation, water rights, pasturage lands, pre-emption and homestead; railroad 
grants : Northern Pacific Railroad lands, 340-342. 
O'Brien, James, California. 

Timber lands, debris from mines, mineral land and non-mineral land, 146, 147. 
Ohleyer, George, California. 

Debris from mines, lands destroyed, levees, 147, 148. 
Ostrom, D. H., and others, California. 

Tailings and debris from mines, overflow of 1862, levees, hvdraulic mining, bottom 
lands, 148-156. 
Parker, H. W, register, and R. B. Harrington, receiver, land office, Beatrice, Nebraska. 
Homestead and pre-emption act of March 3, 1879: land office, fees, rent of office, 
&c. ; timber-culture act, grazing lands, public land surveys, 390, 391. 
Parks, William H , California. 

Homestead and pre-emption, agriculture, pasturage land, irrigation, timber, and 
disposal of timber lands ; land grants and sale of timber lands, 156-158. 
Pasturage homestead. — Albert W. Archibald, 243 ; H. N. Arms, 244 : H. M. Atkinson, 
442; R. C. Beattie,246; J. L. Brush, 249; L. S. Burnham,493; Harvey Carpen- 
ter and James McMartin, 425 ; J. W. Clark, 47 ; William Davenport, 344 ; Daniel 
Davidson, 495 ; A. J. Davis, 345 ; John C. Davis, 446 ; S. H. Day and others, 607 ; 
Ralston Deegan, 347 ; Daniel Flowerree, 360 ; George B. Foote, 360 ; W. C. Gil- 
lette, 363; William M. Hall, 266; S. F. Hauser, 366; W. T. Haywood, 66: 
Patrick J. Healy, 68; L. H. Hershfield, 266 ; J. D. Hyde, 78 ; J. C. Jones, 286; 
Rowell P. Mason, 381 ; John McCaskill and others, 293 ; J. H. Moe, 374 ; John 
T. Murphv, 377 ; Dana Perkins, 161 ; Benjamin Franklin Potts, 378 ; Thomas 
J. Read, 414; B. B. Redding, 169; W. G. Ritcb, 458; Trinidad Romero, 459; 
George L. Shoup,337; I. S. Singiser, 334; William K. Sloan, 566; Edward W. 
Smith, 642; Frank P. Sterling, 379 : Granville Stuart, 382 ; Alexander Topence, 
516; William G. Town and E. S. Crocker, 431; J. W. Tripp, 218; B. F. White, 
429. 
Pasturage lands.— 14, 21, 29, 36, 45, 50, 60, 61, 78, 79, 81, 82, 89, 97, 99, 100, 107, 108, 116, 
120, 127, 129, 135, 140, 157, 159, 161, 171, 184, 196, 208, 218, 239, 241, 243, 244, 245, 
247, 248, 249, 252, 261, 262, 263, 266, 277, 285, 286, 291, 293, 294, 297, 301, 310, 312, 
327, 334, 337, 342,344, 345, 347, 360, 363, 366, 369, 374, 377, 378, 361, 362, 391, 414, 
425, 426, 427, 429, 431, 442, 446, 456, 459, 493, 495, 499, 500, 501, 507, 509, 510, 514, 
574, 578, 626, 641. 
Patterson, Charles M., register, and L. T. Crane, receiver, Marysville, Cal. 

Public lands, fees, patents, homesteads, abandonment of mineral lands, deceased 
claimants, survey and disposition of public lands, rectangular system of surveys, 
mineral lands, 159, 160. 
Perkins, Dana, California. 

Lands within the limits of the Central Pacific Railroad grant ; mineral and non- 
mineral lands; timber, destruction of, depredations, and sale of timber lands ; 
irrigation, pasturage homestead, sale of lands in foot-hills, 160, 161. 



INDEX. 685 

Perkins, Frederic W., Washington Territory. 

Answers to printed interrogatories, agriculture and timber, 537-539. 

Pettigrew,F. W.,Flandreau, Dak. 

Answers to printed interrogatories, agriculture, and timber, 591, 592. 

Pinckney, H. K., Colorado. 

Pasturage land, homestead and pre-emption scrip, fencing of pasturage land, 
sale of pasturage lands; public lands, leasing of, 301, 302. 

Placer claims.— G. F. Allardt, 17; William Ashburner, 15 ; E. D. Bright, 577; Will- 
iam N. Byers, 259 ; J. H. Chase, 333 ; E. C. Combs, 599 ; C. W. Cross, 571 ; S. W. 
Downey, 553 ; Wesley P. Emory, 352 ; L. A. Fenner, 355 ; George B. Foote, 360 ; 
C. M. Foster, 472 ; Edwin Harrison, 267 ; L. H. Hershfield, 367 ; J. M. Howe and 
R. J. Monroe, 597 ; William Neeley Johnson, 90 ; J. B. Low, 29 ; William Magee, 
115 ; J. S. McBride, 116; John McClav, 117 ; W. McDermott, 373 ; R. McMurray, 
125 ; Syndenham Mills, 297 ; J. H. Moe^ 375 ; W. McMullen, 453 ; George A. Nourse, 
143 ; B. F. Potts, 379 ; L. L. Robinson, 185 ; A. A. Sargent, 19-i ; Mr. Stephens, 306; 
Edward F. Taylor, 214; Thomas Waser, 229; Stephen C. Wheeler, 234 ; Carl Wul- 
stein, 317. 

Popper, Charles, Utah. 

Pastoral lands, stock, rainfall, fencing, grasses, leasing the public lands, renting 
large tracts, origin of forest fires, Indian reservations, 509-511. 

Potts, Benjamin Franklin, Governor of Montana Territory. 

Agricultural land, irrigation, timber lands, coal, pasturage lands, pasturage home- 
steads, recording of mining claims, mineral districts, conflicts between sheep and 
cattle men, water rights, sale of timber, surveys, placer claims, 377-379. 

Pradt, George H., New Mexico. 

Answers to printed interrogatories, agriculture, timber, lode and placer claims, 

453-457. 
Surveys, pay for surveying, mineral and timber lands destruction of timber, 
457, 458. 

Pre-emptions.— T. C. Bailey, 478 ; Hon. James B. Belford, 247 ; Harvey Carpenter and 
James McMartin, 426; Edward R. Chase, 610; J. T. Clark, 46; John C. Davis, 
445 , Louis Dugal and S. T. Thompson, 261 ; M. H. Fitch, 264; William M. Hall, 
266 ; Judge John J. Hall, 275 ; J. D. Hvde, 78 ; Alfred James and W. H. Norway, 
87 ; R. F. Kuox, 98 ; Jerome Madden, 108 ; John Markley, 116 ; John McDonald, 
122; George A. Nourse, 140-142; J. B. Neil, 508; W. H. Norwav, 138; Orville B. 
O'Bannon, 342 ; H. W. Parker and R. B. Harrington, 390 ; William H. Parks, 156 ; 
A. A. Sargent, 196 ; Col. George L. Shoup, 338 ; I. S. Singiser, 334 ; W. H. Small- 
wood and S. W. Brown, 535 ; Edward F. Taylor, 217 ; A. S. Weston, 311. 

Quicksilver, mining of.— R. F. Knox, 97-100. 

Randall, W. H. F., Colorado. 

Mineral lands, present miueral law, apex of a lode, surveys, protection of timber, 
mining litigation, 302, 303. 

Raymond, R. W., editor Engineering and Mining Journal, New York, N. Y. 
Open letter relative to mineral lands, 643-653. 

Read, Thomas J., Nevada. 

Classification of lands, irrigation, water rights, agricultural pasturage, timber and 
mineral lands, pasturage homestead, square location, lode claims, mining, local 
mining records. 414-416. 

Redding, B. B., San Francisco, Cal. 

Climatic laws, agriculture without irrigation, rainfall, growth of timber, origin of 
forest fires, preservation of timber, timber laws, unsurveyed land, surveying, 
rectangular surveys, mineral lands, placer mines, pastoral homestead and irri- 
gation, disposition of irrigable lands, water rights, desert land, rainfall, railroad 
lands, alternate sections, pasturage land, bottomlands, irrigation and ditches for 
irrigating, Spanish and Mexican land grants, debris from hydraulic mining, lands 
destroyed, injury to the river beds, character of lands lying between the one 
hundredth degree of west longitude and Sierra Nevada, connected rectangular 
surveys, recommendations as to railroad lands, 162-179. 

Redstone, J. H., California. 

Irrigable and timber lands, protection of timber, homesteads, irrigation, water 
rights and ditches, desert land act, and Mexican grants, 179-131. 

Reed, H. W., Colorado. 

Timber, lode claims, 303, 304. 

Ritcb, W. G., New Mexico. 

Water rights, classification of public lands, pasturage lands, agricultural land, 
pasturage homestead, stock-raising, cattle owners, artesian wells, 458, 459. 

Robinson, J. A., California. 

Mineral laws, work in the surveyor-general's office, deputy mineral surveyors, 
mines, registers and receivers, Spanish ranches, surveys, irrigation, 181-183. 



686 INDEX. 

Robinson, L. L., California. 

Destruction and protection of timber, sale of timber lands, mineral, irrigable, and 
pasturage lands, grasses, homesteads, Spanish grants, hydraulic mining, debris 
from mines, swamp lands, irrigation, water rights and ditches, 183-189. 
Robinson, W. R., California. 

Answers to interrogatories, 189. 
Agriculture and timber, 190-193. 
Rock, A. D., Nevada. 

Answers to printed interrogatories, timber and lode claims, 416. 
Rolker, Charles M., New York. 

Relative to mining, lode claims, 461-464. 
Romero, Trinidad, New Mexico. 

Pasturage land, agriculture, conflicts between sheep and cattle men, fencing 
ranges, water rights, pasturage homesteads, homestead and pre-emption system, 
Mexican titles, irrigation, timber lands, destruction of timber, mineral claims, 
459, 460. 
Russ, Joseph, California. 

Answers to printed interrogatories, 193. 
Agricultural and timber lands, 194, 195. 
Sampson, Ole, Dakota. 

Answers to printed interrogatories, agriculture, 323, 324. 
Sargent, A. A., California. 

Disposition and sale of public lands, timber and grazing lands, pre-emption and 
homestead, surveys, water rights, timber depredations, hydraulic mining, placer 
claims, mining laws, lode claims, litigation, local mining recorders, 195-202. 
Schuman, William, California. 

Spanish grants, 221. s 
Scott, P. C, California. 

Agriculture and timber, 576. 
Shanklin, James W., State surveyor-general, California. 

Timber, preservation aud destruction of timber, irrigation, water rights, pasturage 
land, 202-208. 
Sharp, Thomas S., Dakota. 

Answers to printed interrogatories, timber, 592. 
Shoup, George L., Idaho. 

Pasturage land, pasturage homestead, water rights, timber land, forest fires ; dis- 
position, sale, and protection of timber ; placer claims, mining districts, local 
mining laws, square location, mineral surveys, contests, irrigation, 337, 338. 
Simpson, F., Dakota. 

Answers to printed interrogatories, agriculture, 593. 
Singiser, I. S., receiver, land office, Oxford, Idaho. 

Registers, receivers, recorders of mineral districts ; timber, protection of ; pre-emp- 
tion, homestead, pasturage homestead, water rights, marsh lands, testimony. 334. 
Skae, John, Nevada. 

Mining laws, local mining districts, square location, 428. 
Sloan, W. K., Wyoming. 

Timber laws, timber for charcoal, destruction of timber, 512, 564, 565. 
Small wood, W. H., register, and S. W. Brown, receiver, Vancouver, Wash. Ter. 

Pre-emptions, homesteads, timber culture, depredations, surveys, compensation of 
register and receiver, 535-537. 
Smith, Edward W., Wyoming. 

Water rights, surveys, cattle and sheep ranges, pasturage homestead, timber land, 
641,642. 
Smith, D. W., Washington Territory. 

Answers to printed interrogatories, agriculture and timber, 539-542. 
South worth, R. A., Colorado. 

Answers to printed interrogatories, agriculture, 305, 306. 
Spanish and Mexican laws relating to land grants— H. M. Atkinson, 444 ; J. H. Red- 
stone, 181 ; John Wasson,4. 
Spillman, B. B., California. 

Debris from hydraulic mines, destruction of farms, filling up of rivers. 211, 212. 
Square location— W. H. Beatty, 395, 608 ; M. T. Burgess, 487 ; N. W. Byers, 258 ; John 
Caplice, 346; W. M. Courtis, 340 ; A. J. Davis, 346; W. P. Emory, 351 : George 
B. Foote, 35b ; Robert Gardner, 57 ; Moses Hallett, 269 ; Edwin Harrison, 267 
R. D. Harrison, 365 ; William Haydon, 321 ; Harry C. Hill, 74 ; S. W. Hill, 280 
Alfred James, 86; J. B. Low, 289 ; William Magee, 112; N. McDermott, 372 ; O 
. H. McKee, 123 ; C. T. Meador, 346 ; George G. Merrick, 298 ; Henry Neikirk, 300 
George A. Nourse, 143 ; G. H. Pradt, 456 ; W. H. F. Randall, 302 : R. W. Ray 
mond, 643; H. W. Reed, 304 ; J. A. Robinson, 182; A. A. Sargent, 198; W. H 
Stevens, 306; Edward F. Taylor, 214; John Wasson, 3; B. C. Whitman, 419 
Carl Wulstein, 316. 



INDEX. 687 

Stayner, Charles W., Utah. 

" Homestead and pre-emption laws, canals for irrigating, desert land act, timber, 
and mineral lands, 635-637. 
Stearns, Orson A., Oregon. 

Answers to printed interrogatories, agriculture and timber, 465-468. 
Steinson, Engene K., Colorado. 

Monuments; surveying, cost of; mineral surveys, square locations, deputy mineral 
surveyors, 308. 
Sterling, Frank P., receiver, land office, Helena, Mont. 

Pasturage homesteads, homestead filings, errors in surveys, non-mineral lands, 
379. 
Stevens, W. H., Colorado. 

Mining-lode claims, square location, 306. 
Stiger, O. B., California. 

Destruction aud protection of timber, mineral lands, debris from mines, ditches for 
irrigating, quartz mining, 208-211. 
Stingfellow, George, Utah. 

Desert-land act, irrigating canals, 512. 
Stocking, Moses, Nebraska. 

Answers to printed interrogatories, agriculture and timber, 391-394. 
Stuart, Granville, Montana. 

Timber destruction aud depredation, forest fires, timber culture; pasturage home- 
stead; miningsquare locations; homestead and pre-emption entries ; waterrights, 
irrigation, agriculture : climatic changes, rainfall ; placer mines ; reclamation 
of farm land, 382-384. 
Stuart, Robert G., receiver of public moneys, Washington Territory. 

Public lands, homestead, 542, 543. 
Survey of the public lands — Albert W. Archibald, 244; H. M. Atkinson, 44 L; T. 
C. Bailey, 475; Charles C. Baldwin, 245; C. Bielawski, 26 and 570; E. B. Bon- 
nelle, 597 ; George 0. M. Boutelle, 483; W. H. H. Bowers, 517 ; William K. Bur- 
chinell, 253 ; Harvev Carpenter, 425; Francis M. Case, 259; E. S. Clark, 426; 
John C. Davis, 444 : Louis Dugal and S. T. Thompson, 262; M. H. Fitch, 263 ; 
George B. Foote, 359; August E. Gantz, 670 ; Robert Gardner, 57 ; George Gray, 
622 ; A. T. Harriman, 64 ; A. T. Herrmann, 64 ; S. W. Hill, 284 ; Gov. William A. 
Howard and others, 409 ; William J. Lewis, 101 ; J. B. Low, 289 ; Jerome Madden, 
107 ; J. D. Hvde, 78 ; Alfred James and W. H. Norway,' 86 : R. F. Knox, 98 ; 
William Magee, 110; H. N. MaGuire, 588; Rowell H. Mason, 380; W. H. Mc- 
Bloome, 444 : John McDonald, 121 ; William McMullen, 453 ; H. A. Messinger, 
128 ; John B. Milner, 496 ; J. H. Moe, 374 ; J. B. Neil, 508 ; George A. Nourse, 
140 ; Orville B. O'Bannon, 341 ; H. W. Parker and R. B. Harrington, 391 ; Charles 
M. Patterson and L. T. Crane, 159; Benjamin Franklin Potts, 379; George H. 
Pradt, 457 ; W. H. F. Randall, 303 ; Thomas J. Read, 414. 
Survey op public lands— B. B. Redding, 166 and 177 ; J. A. Robinson, 181 ; A. A 
Sargent, 197 ; William Schuman, 221 ; Col. George L. Shoup, 338; W. H. Small 
wood and S. W. Brown, 536; Edward W. Smith, 641 ; Eugene K. Steinson, 308 
Frank P. Sterling, 379 ; W. H. Stevens, 306 ; Granville Stuart, 383 ; Edward F 
Tavlor, 214 ; George R. Thomas, 567 ; William G. Town and E. S. Crocker, 431 
A. M. Von Schmidt, 242; A. S. Weston, 311 ; B. F. White, 429; William White, 
461 ; B. C. Whitman, 420 ; J. H. Wildes, 234. 
Taylor, Edward F., register land, office, Sacramento, Cal. 

Mineral and non-mineral lands, homestead and pre-emption, mining districts, local 
laws, recording of mineral claims, lode claims and surveys, timber depredations, 
timber culture, desert-land entries, scrip, 213-217. 
Tennant, John A., Washington Territory. 

Answers to printed interrogatories, agriculture, timber, lode and placer claims, 
543, 544. 
Test, E.F., Nebraska. 

The public lands, settlement, churches and charitable institutions, 394. 
Thielman, Vale P., Dakota. 

Answers to printed interrogatories, 324, 325. 
Thomas, George R , register land office, Cheyenne, Wyo. 

Desert land, pasturage, homestead, surveys, registers and receivers, timber, 566, 
567. 
Thomas, Sampson, California. 

Hydraulic mining, debris from mines, present mineral reservation, titles to placer 
land, 212, 213. 
Thompson, James B., Colorado. 

Timber depredations, 308-310. 
Thompson, William Lee, New Mexico. 

Answers to printed interrogatories, agriculture and timber, 621, 622. 



688 INDEX. 

Tiernan, John, John T. Lynch, and others, Salt Lake City, Utah. 

Kelative to mining, lode claims, 512-514. 
Timber— William Ashburner, 13 ; H. M. Atkinson, 441 ; Daniel Bacon, 328: T. C. Bailey,. 
481 ; John A. Ball, 18; D. P. Ballard, 638 ; D. L. Bliss, 606; General M. M. Bane, 
483 ; John Boggs, 28 ; H. S. Bradley, 30 ; J. W. Belknap, 624 ; James T. Berry, 
639 ; James C. Boyles, 318 ; E. D. Bright, 577 ; Minor W. Bruce, 386 ; Uriah Bru- 
ner, 387 ; Royal Back, 389 ; William K. Burchinell, 251 ; A. K. Bush, 639 ; Will- 
iam N. Byers, 258; Harvey Carpenter, 425 ; Robert M. Catlin, 412; Charles H. 
Chamberlain. 38 ; George Chapin, 330 ; James A. Chase, 331 ; E. S. Clark, 426; 
Galen Clark, 43 ; William S. Cobban, 580 ; S. Coffin and Caleb N. Thornton, 624 ; 
Edwin H. Combs, 598 ; William M. Cuppett, 320 ; George B. Currey, 626 ; Dan- 
iel Davidson, 495 ; A. J. Davis, 345 ; C. D. Davis, 573 ; John C. Davis, 446 ; 
Sherman Day, 49 ; S. H. Day and others, 607 ; Stephen W. Downey, 550 ; Louis 
Dugal and S. T. Thompson, 262; Hiram Dustin, 640 ; C. Edwards, 349; F. J. Eisen- 
mann. 320 ; Edward Eldridge, 524 ; Wesley P. Emory, 351 ; Elwood Evans, 531 ; 
E. C. Ferguson, 533 ; M. H. Fitch, 263 ; William Flannery, 357 ; Jerrv D. Flick, 
581 ; George B. Foote, 360 ; Capt. T. C. Ford, 427 ; Charles M. Foster, 469 ; N. 
Gales, 447 ; Robert Gardner, 58 ; James Gibson, 362 ; W. C. Gillette, 383 ; John 
R. Goulter, 534 ; Hon. William M. Gwynn, 60 ; John George Haas, 579 ; N. J. 
Hall, 621 ; William E. Hall, 633 ; E. C. Hardy, 614 ; C. J. B. Harris, 582 ; R. D. 
Harrison, 365 ; E. O. F. Hastings, 79 ; Joseph Hatch, 633 ; Lyman L. Hawley, 
627 ; Cornelius Downing Hendren, 274 ; Judge John J. Henry, 275 : William 
Holden, 77 ; James Holes, 583 ; Anthon M. Holter, 367 ; Joel Hull, 603 ; J. M. 
Howe, 596 ; J. D. Hyde, 78 ; Edward Ivinson, 561 ; Alfred James and W. H. Nor- 
wav, 84 ; I. E. James, 428 ; William Neeley Johnson, 88 ; James E. Kanouse, 371 ; 
Lewis Kent, 389 ; R. A. Kenyon, 390 ; Rudolph Klotz, 575 ; H. L. Knight, 95 ; 
William Kronig, 449 ; A. J. Lamb, 288 ; Jerome Madden, 103 ; William MaGee, 
114 ; H. N. MaGuire, 588 ; John Markley, 116 : Rowell H. Mason, 380 ; James H. 
Martineau, 504; Charles T. McCoy, 591; James McGillivray, 122; R. McMur- 
ray, 124 ; N. C. Meeker, 294 ; H. A. Messinger, 128 ; N. C. Miller, 128; John B. Mil- 
ner. 497 ; D. A. Mizener, 323 ; J. H. Moe, 373 ; D. D. Munger, 630 ; John T. Murphy, 
376 ; J. L. Morrow, 473 ; H. P. Mason, 506 ; J. B. Neil, 507 ; Judge J. W. North, 132 ; 
James H. Nounan, 509; George A. Nourse, 139 ; Orville B. O'Bannon, 340; James 
O'Brien, 146 ; William H. Parks, 157 ; Dana Perkins, 160 ; Frederic W. Perkins, 
538 ; F. W. Pettigrew, 592 ; Benjamin Franklin Potts, 378; George H. Pratt, 455 ; 
W. H. F. Randall, 303 ; Thomas J. Read, 414 ; B. B. Redding, 162 ; H. W. Reed, 303 ; 
J. H. Redstone, 180 ; L. L. Robinson, 183 ; W. R. Robinson, 192; A. D. Rock, 416 ; 
Trinidad Romero, 460; Joseph Russ, 195; A. A. Sargent, 196; P. C. Scott, 576; 
James W. Shanklin, 202; Thomas S. Sharp, 592; Col. Geo. L. Shoup, 338; I. S. 
Singiser, 334; W. K. Sloan, 512; William K. Sloan, 564; D. W. Smith, 541; 
Edward AV. Smith, 642 : Charles W. Stayner, 636 ; Orson A. Stearns, 467 ; O. B. 
Stiger, 208 ; Moses Stocking, 393 ; Granville Stuart, 382; Edward F. Taylor, 216; 
John A. Tennant, 544 ; George R. Thomas, 567 ; James B. Thompson, 308 ; William 
Lee Thompson, 622 ; Alexander Topence, 515 ; William G. Town and E. S. Crocker, 
430 ; J. W. Tripp, 217 and 220 ; David Van Lennep, 418 ; A. W. Von Schmidt, 239 ; 
E. C. Walton, 326 ; Henrv Warren, 465 ; Thomas Wasser, 228 ; John Wasson, 2 ; 
Gustavus A. Wetter, 327; Stephen C. Wheeler, 232; B. F.White, 429; B. C. 
Whitman, 424 ; Karl Winter, 594 ; John Wood, 335 ; O. M. Wozencraft, 238 ; Carl 
Wulstein, 315; H. M. Yerrington, 606. 
Topence, Alexander, Utah. 

Pasturage lands, stock, grasses, timber, irrigation, artesian wells, pasturage home- 
steads, desert-land act, 514-516. 
Town, William G., register, and E. S. Crocker, receiver, land office, Evanston, Wyo- 
ming. 

Land-office forms, registers and receivers, fees, salaries; desert, swamp, or home- 
stead lands; timber depredations, forest fires, pasturage homestead, desert-land 
act, surveys, monuments, climatic changes, Indian reservation, artesian wells, 
petroleum-oil spring, coal land, mining districts, square locations, and mining 
laws, 430-431. 
Tripp, J. W., California. 

Agriculture without irrigation; timber, destruction and preservation of : desert- 
land act, homesteads, pasturage lands, grass, pasturage homesteads; irrigation, 
water-rights, ditches, and cauals; debris from hydraulic mining, 217-220. 

Mining in Alaska— timber, climate, agriculture, mines, placer mines, general infor- 
mation, 220, 221. 
Trittle, F. A., Nevada. 

Classification, sale of public lands to establish a permanent school of mines on the 
Comstock lode, lieu lands for school purposes, 428. 
Van Lennep, David, Nevada. 

Answers to printed interrogatories; agriculture, timber, lode and placer claims, 
416-419. 



INDEX. 689 

Vickers, W. B., Colorado. 

Pasturage land, fencing, 310, 311. 
Von Schmidt, A. W., California. 

Timber lands, protection of; forest fires, agricultural lands, irrigation, water- 
rights, canals, pasturage lands, debris, hydraulic mining, swamp lands, sur- 
veys, 2 9-243. 
Wagner, Theo., United States surveyor general, Sau Francisco, California. 

Answers to printed interrogatories, 221-227. 
Walker, C. H., Nebraska. 

Answers to printed interrogatories, 394, 395. 
Walton, E. C, Dakota. 

Answers to printed interrogatories; agriculture and timber, 325,326. 
Warren, Henry, Oregon. 

Answers to printed interrogatories ; agriculture and timber, 464, 465. 
Waser, Thomas, California. 

Answers to printed interrogatories ; agriculture, timber, lode and placer claims, 
227-231. 
Wasson, John, surveyor general, Tucson, Arizona. 
Answers to printed interrogatories, 1, 2. 
Agriculture, 2. 
Timber, 2. 
Lode claims, 3, 4. 

Spanish and Mexican laws relating to land grants, 4-10. 
Spanish laws relating to mines and minerals, 10-12. 
Water rights.— William Ashburner, 14 ; H. M. Atkinson, 442; John A. Ball, 20; 
Aaron Bell, 22 ; Dr. M. Beshoar, 248 ; John Boggs, 28 ; James F. Bradley, 517 ; 
W. A. Chessman, 343; J. T. Clark, 44; A. J. Davis, 347; John C. Davis, 447; 
Sherman Day, 51 ; Ealston Deegan, 347 ; E. S. Foote, 500 ; George B. Foote, 360 ; 
Hon. William M. Gwynn, 61; Arpad Haraszthy, 64; R. D. Harrison, 365; Judge 
John J. Henry, 275;' An thon M. Holter, 369; W.T.Haywood, 65; William J. 
Lewis, 100; Jerome Madden, 106; William R. May, 507; John McCaskill, 293; 
James McGillivray, 123 ; N. C. Meeker, 293 ; Henry A. Metcalf, 297 ; John B. Mil- 
ner, 498; J. B. Neil, 507 ; Judge J. W. North, 134; Orville B. O'Bannon, 342; 
Benjamin Franklin Potts, 379 ; Thomas J. Read, 414; B. B. Redding, 171 ; J. H. 
Redstone, 180; W. G. Ritch, 458; L. L. Robinson, 184; Trinidad Romero, 459; 
James W. Shanklin, 205; Col. Geo. L. Shoup, 338 ; I. S. Singiser, 334 ; Edward 
W. Smith, 641 ; Granville Stuart, 383 ; J. W. Tripp, 218 ; A. W. Von Schmidt, 
240 ; B. F. White, 429. 
Weston, A. S., Colorado. 

Mining laws, surveys, pre-emption and homestead, 311. 
Wetter, Gustavus A., register, and Lotts S. Bayliss, receiver, land office Yankton, Da- 
cota. 

Land-office forms, fees, salaries, abandonment of homesteads, homestead and pre- 
emption, agriculture, timber, rainfall, pasturage, land scrip, 326, 327. 
Wheeler, Stephen C, California. 

Answers to printed interrogatories ; agriculture, timber, lode and placer claims, 231- 
234. 
White, B. F., Idaho. 

Pasturage land, pasturage homestead, water rights, irrigation, preservation and 
disposition of timber, fencing ranges, agriculture, mines and mining, land-office 
papers, &c, 429, 430. 
White, William, New Mexico. 

Surveys, triangulation, sale of public lands, classification, minerals, titles, 460, 461. 
Whitman, B. C, Virginia City, Nevada. 

Mining laws ; records and recorders, Miller mining claim, county recorder ; Comstock 
lode; square location ; mill sites, subterranean rights ; timber, cutting of ; tim- 
ber law, 419-424. 
Wight, F. D., Colorado. 

Sheep-raising, pasturage land, agricultural land, homestead, 311, 312. 
Wilder, E. B., Edward Wilkes, and others, Salt Lake City, Utah. 

Suggestions concerning modification of mining laws, lode claims, 516, 521, 522. 
Wildes, J. H., California. 

Surveying, Spanish grants, monuments, mineral surveys, contract system, public 
lands surveyed and unsurveyed in California, triangulation, 234-237. 
Winter, Karl, Dakota. 

Answers to printed interrogatories ; agriculture and timber, 593-595. 
Wood, John, Idaho. 

Answers to printed interrogatories ; agriculture and timber, 334, 335. 
Wooten, R. L., Colorado. 

Disposition of pastoral lands, 312. 

45 L C 



690 INDEX. 

Wozencraft, O. M., California. 

Classification ; timber, irrigable, and pasturage lands, 238, 239. 
Wrinkle, Lawrence F. J., Nevada. 

Lode claims, 431-441. 
Wiwstein, Carl, Colorado. 

Answers to printed interrogatories ; agriculture, timber, lode and placer claims, 
313-317. 
Wyoming Stock Growers' Association, Wyoming. 

Notice published by the association, resolutions adopted by the association, 544- 
546. Memoranda, 546-548. 
Yerrington, H. M., Carson City, Nevada. 

Timber and timber lands, disposition of timber, 606, 607. 
Young, John C, Idaho. 

Answers to printed interrogatories, 335, 336. 

Agriculture, 336, 337. 




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